EXHIBIT 4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP.,
Depositor
MIDLAND LOAN SERVICES, INC.,
Master Servicer No. 1
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer No. 2
MIDLAND LOAN SERVICES, INC.,
Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of
December 1, 2005
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2005-LDP5
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Certain Calculations.........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by Trustee........................................
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Defects in Mortgage
Files and Breaches of Representations and Warranties........
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests........................................
Section 2.05 Grantor Trust Designations...................................
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of
the Mortgage Loans..........................................
Section 3.02 Collection of Mortgage Loan Payments.........................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts..........................................
Section 3.04 The Certificate Accounts, the Lower-Tier and Upper-Tier
Distribution Accounts, the Companion Distribution
Account, the Interest Reserve Account, the Gain-on-Sale
Reserve Account, the Excess Interest Distribution
Account and the Floating Rate Account.......................
Section 3.05 Permitted Withdrawals from the Certificate Accounts, the
Distribution Accounts, the Companion Distribution
Account, the Excess Interest Distribution Account and
the Floating Rate Account...................................
Section 3.06 Investment of Funds in the Certificate Accounts and the
REO Account.................................................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption Agreements....
Section 3.09 Realization Upon Defaulted Mortgage Loans....................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing Compensation.......................................
Section 3.12 Inspections; Collection of Financial Statements..............
Section 3.13 Annual Statement as to Compliance............................
Section 3.14 Reports by Independent Public Accountants....................
Section 3.15 Access to Certain Information................................
Section 3.16 Title to REO Property; REO Account...........................
Section 3.17 Management of REO Property...................................
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties..........
Section 3.19 Additional Obligations of the Applicable Master Servicer
and Special Servicer........................................
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing between Master Servicer and Special
Servicer; Recordkeeping; Asset Status Report................
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 Representations, Warranties and Covenants of the Master
Servicers...................................................
Section 3.24 Representations, Warranties and Covenants of the Special
Servicer....................................................
Section 3.25 Interest Reserve Account.....................................
Section 3.26 Excess Interest Distribution Account.........................
Section 3.27 Directing Certificateholder Contact with Master Servicers....
Section 3.28 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of
Directing Certificateholder.................................
Section 3.29 Intercreditor Agreements.....................................
Section 3.30 Companion Paying Agent.......................................
Section 3.31 Companion Register...........................................
Section 3.32 Swap Contract................................................
Section 3.33 Certain Matters Relating to the Future Securitization of
the Serviced Pari Passu Companion Loans.....................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; CMSA Investor Reporting
Package (IRP)s; Grant of Power of Attorney..................
Section 4.03 P&I Advances.................................................
Section 4.04 Allocation of Collateral Support Deficit.....................
Section 4.05 Appraisal Reductions.........................................
Section 4.06 Certificate Deferred Interest................................
Section 4.07 Grantor Trust Reporting......................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration of Transfer and Exchange of Certificates........
Section 5.03 Book-Entry Certificates......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons Deemed Owners........................................
Section 5.06 Certificate Ownership Certification..........................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Master Servicers and the
Special Servicer............................................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Master Servicers or the Special Servicer....................
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicers, the Special Servicer and Others..................
Section 6.04 Master Servicers and Special Servicer Not to Resign..........
Section 6.05 Rights of the Depositor in Respect of the Master
Servicers and the Special Servicer..........................
Section 6.06 The Master Servicers and the Special Servicer as
Certificate Owner...........................................
Section 6.07 The Directing Certificateholder..............................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Master Servicers and Special Servicer
Termination.................................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
Section 7.04 Waiver of Events of Default..................................
Section 7.05 Trustee as Maker of Advances.................................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee........................................
Section 8.02 Certain Matters Affecting the Trustee........................
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans..............................
Section 8.04 Trustee May Own Certificates.................................
Section 8.05 Fees and Expenses of Trustee; Indemnification of Trustee.....
Section 8.06 Eligibility Requirements for Trustee.........................
Section 8.07 Resignation and Removal of the Trustee.......................
Section 8.08 Successor Trustee............................................
Section 8.09 Merger or Consolidation of Trustee...........................
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Access to Certain Information................................
Section 8.13 Representations and Warranties of the Trustee................
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans..............................................
Section 9.02 Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.........................................
Section 10.02 Use of Agents................................................
Section 10.03 Depositor, Master Servicers and Special Servicer to
Cooperate with Trustee......................................
Section 10.04 Appointment of REMIC Administrators..........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment....................................................
Section 11.02 Recordation of Agreement; Counterparts.......................
Section 11.03 Limitation on Rights of Certificateholders...................
Section 11.04 Governing Law................................................
Section 11.05 Notices......................................................
Section 11.06 Severability of Provisions...................................
Section 11.07 Grant of a Security Interest.................................
Section 11.08 Successors and Assigns; Third Party Beneficiaries............
Section 11.09 Article and Section Headings.................................
Section 11.10 Notices to the Rating Agencies...............................
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2FL Certificate
Exhibit A-3 Form of Class A-2 Certificate
Exhibit A-4 Form of Class A-3 Certificate
Exhibit A-5 Form of Class A-4 Certificate
Exhibit A-6 Form of Class A-SB Certificate
Exhibit A-7 Form of Class A-1A Certificate
Exhibit A-8 Form of Class X-1 Certificate
Exhibit A-9 Form of Class X-2 Certificate
Exhibit A-10 Form of Class A-M Certificate
Exhibit A-11 Form of Class A-J Certificate
Exhibit A-12 Form of Class B Certificate
Exhibit A-13 Form of Class C Certificate
Exhibit A-14 Form of Class D Certificate
Exhibit A-15 Form of Class E Certificate
Exhibit A-16 Form of Class F Certificate
Exhibit A-17 Form of Class G Certificate
Exhibit A-18 Form of Class H Certificate
Exhibit A-19 Form of Class J Certificate
Exhibit A-20 Form of Class K Certificate
Exhibit A-21 Form of Class L Certificate
Exhibit A-22 Form of Class M Certificate
Exhibit A-23 Form of Class N Certificate
Exhibit A-24 Form of Class O Certificate
Exhibit A-25 Form of Class P Certificate
Exhibit A-26 Form of Class Q Certificate
Exhibit A-27 Form of Class NR Certificate
Exhibit A-28 Form of Class S Certificate
Exhibit A-29 Form of Class R Certificate
Exhibit A-30 Form of Class LR Certificate
Exhibit A-31 Form of Class HG-1 Certificate
Exhibit A-32 Form of Class HG-2 Certificate
Exhibit A-33 Form of Class HG-3 Certificate
Exhibit A-34 Form of Class HG-4 Certificate
Exhibit A-35 Form of Class HG-5 Certificate
Exhibit A-36 Form of Class HG-X Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E Form of Request for Release
Exhibit F Form of ERISA Representation Letter
Exhibit G Form of Statement to Certificateholders
Exhibit H Form of Omnibus Assignment
Exhibit I-1 Form of Regulation S Transfer Certificate during Restricted
Period
Exhibit I-2 Form of Regulation S Transfer Certificate after Restricted
Period
Exhibit J Form of Purchase Option Notice
Exhibit K Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate during
Restricted Period
Exhibit L [Reserved]
Exhibit M [Reserved]
Exhibit N Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate after
Restricted Period
Exhibit O Form of Transfer Certificate of Regulation S Book-Entry
Certificate to Rule 144A Global Book-Entry Certificate
during Restricted Period
Exhibit P Form of Transfer Certificate for Regulation S Book-Entry
Certificate during Restricted Period
Exhibit Q Form Certification to be Provided with Form 10-K
Exhibit R [Reserved]
Exhibit S-1 Form of Certification to be Provided to Depositor by Trustee
Exhibit S-2 Form of Certification to be Provided to Depositor by Master
Servicer
Exhibit S-3 Form of Certification to be Provided to Depositor by
Special Servicer
Exhibit T Initial Companion Holders
Exhibit U Form of Notice and Certification Regarding Defeasance of
Mortgage Loan
Exhibit V Information Request from Certificateholder, Beneficial
Owner or Prospective Purchaser
Exhibit W Trustee Certification/Exception Report
Exhibit X Form of Assignment, Assumption and Recognition Agreement
SCHEDULES
Schedule 1 Mortgage Loans Containing Additional Debt
Schedule 2 Mortgage Loans that Initially Pay Interest Only
Schedule 3 Class X-2 Reference Rate Schedule
Schedule 4 Class A-SB Planned Principal Balance Schedule
This Pooling and Servicing Agreement (the "Agreement") is dated and
effective as of December 1, 2005, among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc., as Master Servicer
No. 1, GMAC Commercial Mortgage Corporation, as Master Servicer No. 2, Midland
Loan Services, Inc., as Special Servicer, and LaSalle Bank National Association,
as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily and manufactured housing community mortgage loans (the "Mortgage
Loans"). As provided herein, the Trustee shall elect or shall cause an election
to be made to treat the Trust Fund (exclusive of the Class A-2FL Regular
Interest, the Swap Contract, the Floating Rate Account, the Excess Interest, the
Excess Interest Distribution Account and the proceeds thereof) for federal
income tax purposes as two separate real estate mortgage investment conduits
(the "Upper-Tier REMIC" and the "Lower-Tier REMIC" as described herein).
The parties intend that the portions of the Trust Fund representing
(i) the Excess Interest, the Excess Interest Distribution Account and the
proceeds thereof and (ii) the Class A-2FL Regular Interest, the Swap Contract,
the Floating Rate Account and the proceeds thereof will be treated as a grantor
trust under subpart E of Part I of subchapter J of the Code and that the
beneficial interests therein will be represented by the Class S Certificates and
the Class A-2FL Certificates, respectively.
LOWER-TIER REMIC
The Class LA-1-1, Class LA-1-2, Class LA-1-3, Class LA-1-4, Class
LA-1-5, Class LA-1A-1, Class LA-1A-2, Class LA-1A-3, Class LA-1A-4, Class
LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class LA-1A-8, Class LA-1A-9, Class
LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class LA-1A-13, Class LA-1A-14, Class
LA-1A-15, Class LA-2FL-1, Class LA-2FL-2, Class LA-2FL-3, Class LA-2-1, Class
LA-2-2, Class LA-3-1, Class LA-3-2, Class LA-4-1, Class LA-4-2, Class LA-4-3,
Class LA-4-4, Class LA-4-5, Class LA-4-6, Class LA-4-7, Class LA-SB-1, Class
LA-SB-2, Class LA-SB-3, Class LA-SB-4, Class LA-SB-5, Class LA-SB-6, Class LA-M,
Class LA-J, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG-1, Class
LG-2, Class LG-3, Class LH-1, Class LH-2, Class LH-3, Class LJ-1, Class LJ-2,
Class LJ-3, Class LK-1, Class LK-2, Class LK-3, Class LL-1, Class LL-2, Class
LM-1, Class LM-2, Class LN, Class LO, Class LP, Class LQ-1, Class LQ-2, Class
LNR, Class LHG-X, Class LHG-1, Class LHG-2, Class LHG-3, Class LHG-4 and Class
LHG-5 Uncertificated Interests will evidence "regular interests" in the
Lower-Tier REMIC created hereunder. The sole class of "residual interests" in
the Lower-Tier REMIC will be evidenced by the Class LR Certificates.
The following table sets forth the Original Lower-Tier Principal
Amounts or Notional Amount and per annum rates of interest for the
Uncertificated Lower-Tier Interests and the Class LR Certificates:
Original
Lower-Tier
Principal Amount
Class Designation Interest Rate or Notional Amount
----------------------- ---------------- -------------------
Class LA-1-1 (1) $31,163,000
Class LA-1-2 (1) $6,725,000
Class LA-1-3 (1) $70,690,000
Class LA-1-4 (1) $83,962,000
Class LA-1-5 (1) $58,020,000
Class LA-1A-1 (1) $737,000
Class LA-1A-2 (1) $852,000
Class LA-1A-3 (1) $8,325,000
Class LA-1A-4 (1) $9,574,000
Class LA-1A-5 (1) $11,056,000
Class LA-1A-6 (1) $33,745,000
Class LA-1A-7 (1) $9,347,000
Class LA-1A-8 (1) $8,976,000
Class LA-1A-9 (1) $8,331,000
Class LA-1A-10 (1) $51,291,000
Class LA-1A-11 (1) $7,214,000
Class LA-1A-12 (1) $6,933,000
Class LA-1A-13 (1) $97,034,0000
Class LA-1A-14 (1) $16,772,000
Class LA-1A-15 (1) $182,888,000
Class LA-2FL-1 (1) $58,721,000
Class LA-2FL-2 (1) $80,759,000
Class LA-2FL-3 (1) $60,520,000
Class LA-2-1 (1) $287,012,000
Class LA-2-2 (1) $10,490,000
Class LA-3-1 (1) $60,961,000
Class LA-3-2 (1) $110,490,000
Class LA-4-1 (1) $157,596,000
Class LA-4-2 (1) $198,751,000
Class LA-4-3 (1) $83,957,000
Class LA-4-4 (1) $61,279,000
Class LA-4-5 (1) $55,744,000
Class LA-4-6 (1) $57,259,000
Class LA-4-7 (1) $781,284,000
Class LA-SB-1 (1) $11,043,000
Class LA-SB-2 (1) $17,610,000
Class LA-SB-3 (1) $17,511,000
Class LA-SB-4 (1) $18,603,000
Class LA-SB-5 (1) $18,532,000
Class LA-SB-6 (1) $86,156,000
Class LA-M (1) $419,702,000
Class LA-J (1) $299,038,000
Class LB (1) $26,231,000
Class LC (1) $73,448,000
Class LD (1) $41,970,000
Class LE (1) $20,985,000
Class LF (1) $52,463,000
Class LG-1 (1) $5,441,000
Class LG-2 (1) $18,302,000
Class LG-3 (1) $12,981,000
Class LH-1 (1) $18,508,000
Class LH-2 (1) $20,343,000
Class LH-3 (1) $13,612,000
Class LJ-1 (1) $14,554,000
Class LJ-2 (1) $24,451,000
Class LJ-3 (1) $2,965,000
Class LK-1 (1) $21,486,000
Class LK-2 (1) $28,693,000
Class LK-3 (1) $12,776,000
Class LL-1 (1) $18,078,000
Class LL-2 (1) $8,154,000
Class LM-1 (1) $2,945,000
Class LM-2 (1) $12,794,000
Class LN (1) $15,738,000
Class LO (1) $5,247,000
Class LP (1) $5,246,000
Class LQ-1 (1) $7,759,000
Class LQ-2 (1) $2,734,000
Class LNR (1) $52,462,779
Class LHG-X (3) $130,000,000
Class LHG-1 (2) $27,000,000
Class LHG-2 (2) $24,000,000
Class LHG-3 (2) $40,800,000
Class LHG-4 (2) $32,400,000
Class LHG-5 (2) $5,800,000
Class LR None(4) None(3)
------------
(1) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the Weighted Average Net Mortgage Rate.
(2) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be equal to the Pass-Through Rate of the related Class of Class HG
Certificates.
(3) The Class HG-X Certificates do not have a Certificate Balance; rather,
such Class of Certificates will accrue interest as provided herein on the
related Notional Amount.
(4) The Class LR Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount and/or Class
HG Available Distribution Amount remaining in the Lower-Tier Distribution
Account after distributing the Lower-Tier Regular Distribution Amount and
the Lower-Tier HG Distribution Amount shall be distributed to the Holders
of the Class LR Certificates (but only to the extent of the Available
Distribution Amount and the Lower-Tier HG Distribution Amount for such
Distribution Date, if any, remaining in the Lower-Tier Distribution
Account).
UPPER-TIER REMIC
The Class A-1, Class A-2, Class X-0, Xxxxx X-0, Class A-SB, Class
A-1A, Class X-1, Class X-2, Class A-M, Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class Q, Class NR, Class HG-1, Class HG-2, Class HG-3, Class
HG-4, Class HG-5 and Class HG-X Certificates and the Class A-2FL Regular
Interest will evidence "regular interests" in the Upper-Tier REMIC created
hereunder. The sole Class of "residual interests" in the Upper-Tier REMIC
created hereunder will be evidenced by the Class R Certificates.
The following table sets forth the designation, the pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or Notional Amount ("Original Notional Amount"),
as applicable, and the initial ratings given each Class by the Rating Agencies
for each Class of Certificates and the Class A-2FL Regular Interest comprising
the interests in the Upper-Tier REMIC created hereunder:
Original
Initial Certificate
Pass-Through Balance or Ratings(1)
Rate Notional Amount (S&P/Xxxxx'x/Fitch)
------------ --------------- -------------------
Class A-1
Certificates(2) 5.0350% $250,560,000 AAA/Aaa/AAA
Class A-2FL Regular
Interest(2)(3) 5.0780% $200,000,000(4) AAA/Aaa/AAA(5)
Class A-2
Certificates(2) 5.1980% $297,502,000 AAA/Aaa/AAA
Class A-3
Certificates(2) 5.2082%(6) $171,451,000 AAA/Aaa/AAA
Class A-4
Certificates(2) 5.1792%(7) $1,395,870,000 AAA/Aaa/AAA
Class A-SB
Certificates(2) 5.1692%(8) $169,455,000 AAA/Aaa/AAA
Class A-1A
Certificates(2) 5.1812%(9) $453,075,000 AAA/Aaa/AAA
Class A-M
Certificates 5.2212%(10) $419,702,000 AAA/Aaa/AAA
Class A-J
Certificates 5.3002%(11) $299,038,000 AAA/Aaa/AAA
Class B Certificates 5.3342%(12) $26,231,000 AA+/Aa1/AA+
Class C Certificates 5.3342%(12) $73,448,000 AA/Aa2/AA
Class D Certificates 5.3342%(12) $41,970,000 AA-/Aa3/AA-
Class E Certificates 5.3342%(12) $20,985,000 A+/A1/A+
Class F Certificates 5.3342%(12) $52,463,000 A/A2/A
Class G Certificates 5.3342%(12) $36,724,000 A-/A3/A-
Class H Certificates 5.3342%(12) $52,463,000 BBB+/Baa1/BBB+
Class J Certificates 5.3342%(12) $41,970,000 BBB/Baa2/BBB
Class K Certificates 5.3342%(12) $62,955,000 BBB-/Baa3/BBB-
Class L Certificates 4.9260%(13) $26,232,000 BB+/*/BB+
Class M Certificates 4.9260%(13) $15,739,000 BB/*/BB
Class N Certificates 4.9260%(13) $15,738,000 BB-/*/BB-
Class O Certificates 4.9260%(13) $5,247,000 B+/*/B+
Class P Certificates 4.9260%(13) $5,246,000 B/*/B
Class Q Certificates 4.9260%(13) $10,493,000 B-/*/B-
Class NR Certificates 4.9650%(13) $52,462,779 */*/*
Class HG-1
Certificates 5.5560%(14) $27,000,000 */Ba3/*
Class HG-2 Certificates 5.5560%(14) $24,000,000 */B1/*
Class HG-3 Certificates 5.5560%(14) $40,800,000 */B2/*
Class HG-4 Certificates 5.5560%(14) $32,400,000 */B3/*
Class HG-5 Certificates 5.5560%(14) $5,800,000 */*/*
Class HG-X Certificates 0.0810% $130,000,000(15) */Ba3/*
Class R Certificates N/A(16) N/A(16) */*/*
Class X-1 Certificates 0.0333%(17) $4,197,019,779(18) AAA/Aaa/AAA
Class X-2 Certificates 0.1146%(17) $4,112,657,000(18) AAA/Aaa/AAA
------------
(1) The Certificates marked with an asterisk have not been rated by the
applicable Rating Agency.
(2) For purposes of making distributions to the Class A-1, Class A-2, Class
A-3, Class A-4, Class A-SB and Class A-1A Certificates and the Class A-2FL
Regular Interest, the pool of Mortgage Loans will be deemed to consist of
two distinct Loan Groups, Loan Group 1 and Loan Group 2.
(3) The Class A-2FL Regular Interest will be uncertificated and will be
transferred to the Trust Fund on the Closing Date, and the Trust will
issue the Class A-2FL Certificates in exchange therefor.
(4) The Certificate Balance of the Class A-2FL Certificates will be equal at
all times to the Certificate Balance of the Class A-2FL Regular Interest.
The Original Certificate Balance of the Class A-2FL Certificates will be
equal to $200,000,000.
(5) The Class A-2FL Regular Interest will not be rated. The ratings shown are
with respect to the Class A-2FL Certificates and only reflect receipt of
interest at the Class A-2FL Regular Interest Pass-Through Rate.
(6) The Pass-Through Rate for any Distribution Date for the Class A-3
Certificates will be a per annum rate equal to the Weighted Average Net
Mortgage Rate for the Distribution Date minus 0.1260%.
(7) The Pass-Through Rate for any Distribution Date for the Class A-4
Certificates will be a per annum rate equal to the Weighted Average Net
Mortgage Rate for the Distribution Date minus 0.1550%.
(8) The Pass-Through Rate for any Distribution Date for the Class A-SB
Certificates will be a per annum rate equal to the Weighted Average Net
Mortgage Rate for the Distribution Date minus 0.1650%.
(9) The Pass-Through Rate for any Distribution Date for the Class A-1A
Certificates will be a per annum rate equal to the Weighted Average Net
Mortgage Rate for the Distribution Date minus 0.1530%.
(10) The Pass-Through Rate for any Distribution Date for the Class A-M
Certificates will be a per annum rate equal to the Weighted Average Net
Mortgage Rate for the Distribution Date minus 0.1130%.
(11) The Pass-Through Rate for any Distribution Date for the Class A-J
Certificates will be a per annum rate equal to the Weighted Average Net
Mortgage Rate for the Distribution Date minus 0.0340%.
(12) The Pass-Through Rate for any Distribution Date for the Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates will be the Weighted Average Net Mortgage Rate.
(13) Subject to a maximum Pass-Through Rate equal to the Weighted Average Net
Mortgage Rate.
(14) The Pass-Through Rate for each of the Class HG-1, Class HG-2, Class HG-3,
Class HG-4 and Class HG-5 Certificates for any Distribution Date will be
equal to the Class HG-1 Pass-Through Rate, the Class HG-2 Pass-Through
Rate, the Class HG-3 Pass-Through Rate, the Class HG-4 Pass-Through Rate
and the Class HG-5 Pass-Through Rate, respectively, in each case, as
defined herein.
(15) The Class HG-X Certificates will not have a Certificate Balance; rather,
such Class of Certificates will accrue interest as provided herein on the
related Notional Amount.
(16) The Class R Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Upper Tier Distribution Account, after all required distributions
under this Agreement have been made to each other Class of Certificates,
will be distributed to the Holders of the Class R Certificates.
(17) The Pass-Through Rate on the Class X-1 and Class X-2 Certificates will be
based on the weighted average interest strip rates of the respective
components of the Class X-1 and Class X-2 certificates.
(18) The Class X-1 and Class X-2 Certificates will not have a Certificate
Balance; rather, each such Class of Certificates will accrue interest as
provided herein on the related Class X-1 Notional Amount and Class X-2
Notional Amount, as applicable.
As of the close of business on the Cut-off Date, the Mortgage Loans
(not including the Houston Galleria Trust Subordinate Companion Loan) had an
aggregate principal balance, after application of all payments of principal due
on or before such date, whether or not received, equal to $4,196,426,780. As of
the close of business on the Cut-off Date, the Houston Galleria Trust
Subordinate Companion Loan had a principal balance, after application of all
payments of principal due on or before such date, whether or not received, equal
to $130,000,000.
The Houston Galleria Pari Passu Companion Loan, the Houston Galleria
Non-Trust Subordinate Companion Loan, the Intech One & Two Companion Loan, the
Lincoln Park Town Home Companion Loan, the Brookdale Office Portfolio Companion
Loan, the Jordan Creek Companion Loan and the 30 West Monroe Companion Loan
(collectively, the "Companion Loans") are not part of the Trust Fund, but are
secured by the same Mortgage that secures the related Mortgage Loan (each, other
than the Houston Galleria Loan, an "AB Mortgage Loan" and, collectively, the "AB
Mortgage Loans") that is part of the Trust Fund. The Houston Galleria Whole Loan
consists of the Houston Galleria Loan, the Houston Galleria Pari Passu Companion
Loan, the Houston Galleria Non-Trust Subordinate Companion Loan and the Houston
Galleria Trust Subordinate Companion Loan. The Houston Galleria Loan and the
Houston Galleria Pari Passu Companion Loan are pari passu with each other and
the Houston Galleria Non-Trust Subordinate Companion Loan and the Houston
Galleria Trust Subordinate Companion Loan are subordinate to such loans. The
Houston Galleria Trust Subordinate Companion Loan is subordinate to the Houston
Galleria Loan, the Houston Galleria Pari Passu Loan and the Houston Galleria
Non-Trust Subordinate Companion Loan. The Houston Galleria Loan and the Houston
Galleria Trust Subordinate Companion Loan are part of the Trust Fund. As and to
the extent provided herein, the Companion Loans will be serviced and
administered in accordance with this Agreement. Amounts attributable to the
Companion Loans will not be assets of the Trust Fund, and (except to the extent
that such amounts are payable or reimbursable to any party to this Agreement)
will be owned by the related Companion Holders.
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
including in the Preliminary Statement, the following capitalized terms, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"30 West Xxxxxx XX Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 39.
"30 West Monroe Companion Loan": That certain loan evidenced by a
promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the 00 Xxxx Xxxxxx XX Mortgage Loan.
"30 West Monroe Intercreditor Agreement": That certain Intercreditor
Agreement Among Noteholders, dated as of August 18, 2005, by and between The
Variable Annuity Life Insurance Company, as the B Note Holder, and AIG Mortgage
Capital, LLC, as the A Note Holder.
"30/360 Mortgage Loans": The Mortgage Loans indicated as such in the
Mortgage Loan Schedule.
"AB Mortgage Loan": As defined in the recitals to this Agreement.
"Acceptable Insurance Default": With respect to any Mortgage Loan, a
default under the related Mortgage Loan documents arising by reason of any
failure on the part of the related Mortgagor to maintain with respect to the
related Mortgaged Property specific insurance coverage with respect to, or an
all-risk casualty insurance policy that does not specifically exclude, terrorist
or similar acts, and/or any failure on the part of the related Mortgagor to
maintain with respect to the related Mortgaged Property insurance coverage with
respect to damages or casualties caused by terrorist or similar acts upon terms
not materially less favorable than those in place as of December 28, 2005, as to
which default the applicable Master Servicer and the Special Servicer may
forbear taking any enforcement action, provided, that the applicable Master
Servicer (with respect to Non-Specially Serviced Mortgage Loans) or the Special
Servicer (with respect to Specially Serviced Mortgage Loans), as applicable, may
forbear taking any enforcement actions if the applicable Master Servicer or the
Special Servicer, if applicable, has determined, in its reasonable judgment,
based on inquiry consistent with the Servicing Standards and, in the case of
specially Serviced Mortgage Loans, subject to the consent of the Directing
Certificateholder, that either (a) such insurance is not available at
commercially reasonable rates and that such hazards are not at the time commonly
insured against for properties similar to the related Mortgaged Property and
located in or around the region in which such related Mortgaged Property is
located, or (b) such insurance is not available at any rate; provided, however,
the Directing Certificateholder will not have more than 30 days to respond to
the Special Servicer's request for consent; provided further, that upon the
Master Servicer's or the Special Servicer's, as applicable, determination,
consistent with the Servicing Standards, that exigent circumstances do not allow
the Master Servicer or the Special Servicer, as applicable, to wait for the
consent of the Directing Certificateholder, the Master Servicer or the Special
Servicer, as applicable, will not be required to do so. The Master Servicer or
the Special Servicer, as applicable, shall be entitled to rely on insurance
consultants in making determinations described above. The costs of such
insurance consultants shall be paid from the applicable Certificate Account as a
Servicing Advance to the extent the Mortgage Loan documents do not prohibit such
amounts from being collected from the related Mortgagor and otherwise as an
expense of the Trust Fund. In no event shall a Workout Fee be payable in
connection with the resolution of an Acceptable Insurance Default.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Certificates (other than the Class A-2FL, Class S and
Residual Certificates) and the Class A-2FL Regular Interest, an amount equal to
interest for the related Interest Accrual Period at the Pass-Through Rate of
such Class of Certificates or Class A-2FL Regular Interest, as applicable, for
such Distribution Date, accrued on the related Certificate Balance (or with
respect to the Class X-1 and Class X-2 Certificates, the Notional Amount of such
Class) outstanding immediately prior to such Distribution Date (provided, that
for interest accrual purposes any distributions in reduction of Certificate
Balance or Notional Amount or reductions in Certificate Balance or Notional
Amount as a result of allocations of Collateral Support Deficit or Houston
Galleria Collateral Support Deficit, as applicable, on the Distribution Date
occurring in an Interest Accrual Period shall be deemed to have been made on the
first day of such Interest Accrual Period). Accrued Certificate Interest, except
with respect to the Class HG Certificates, shall be calculated on the basis of a
360-day year consisting of twelve 30-day months. Accrued Certificate Interest
with respect to the Class HG Certificates shall be calculated on the basis of
the actual number of days in the related Interest Accrual Period and a 360-day
year.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed
by the related Mortgagor to a party other than the lender under such Mortgage
Loan as of the Closing Date as set forth on Schedule 1 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate
loan documents (including any subordination agreement).
"Additional Exclusions": Exclusions in addition to those customarily
found in the insurance policies for mortgaged properties similar to the
Mortgaged Properties on September 11, 2001.
"Administrative Cost Rate": With respect to each Mortgage Loan, the
sum of the Servicing Fee Rate and the Trustee Fee Rate, in each case computed on
the basis of the Stated Principal Balance of the related Mortgage Loan and in
the same manner as interest is calculated on such Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(c)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"AIG Mortgage Capital, LLC": AIG Mortgage Capital, LLC, a Delaware
limited liability company, or its successor in interest.
"Anticipated Repayment Date": With respect to any Mortgage Loan that
is indicated on the Mortgage Loan Schedule as having a Revised Rate, the date
upon which such Mortgage Loan commences accruing interest at such Revised Rate.
"Applicable Procedures": As defined in Section 5.02(b)(i).
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York and the State of Illinois and (b) such other state or local tax laws whose
applicability shall have been brought to the attention of the Trustee by either
(i) an Opinion of Counsel delivered to it, or (ii) written notice from the
appropriate taxing authority as to the applicability of such state or local tax
laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan (other than the Jordan Creek AB Mortgage Loan) and the Houston
Galleria Whole Loan as to which an Appraisal Reduction Event has occurred, will
be an amount calculated by the applicable Master Servicer, based upon the
appraised value determined by the Special Servicer, in consultation with the
Directing Certificateholder, as of the first Determination Date that is at least
10 Business Days following the date on which the Special Servicer receives and
delivers to the applicable Master Servicer the related Appraisal, equal to the
excess of (a) the Stated Principal Balance of such Mortgage Loan, any related
Companion Loan or the Houston Galleria Whole Loan, as applicable, over (b) the
excess of (i) the sum of (A) 90% of the Appraised Value of the related Mortgaged
Property as determined (1) by one or more Appraisals with respect to any
Mortgage Loan or the Houston Galleria Whole Loan, as applicable (together with
any other Mortgage Loan cross-collateralized with such Mortgage Loan), with an
outstanding principal balance equal to or in excess of $2,000,000 (the costs of
which shall be paid by the applicable Master Servicer as a Servicing Advance) or
(2) by an internal valuation performed by the Special Servicer with respect to
any Mortgage Loan (together with any other Mortgage Loan cross-collateralized
with such Mortgage Loan) with an outstanding principal balance less than
$2,000,000 minus (except for purposes of determining the Controlling Holder on
the Houston Galleria Companion Loans or the Brookdale Office Portfolio Companion
Loans), with respect to any Appraisals, such downward adjustments as the Special
Servicer may make (without implying any obligation to do so) based upon its
review of the Appraisal and any other information it deems relevant, and (B) all
escrows, letters of credit and reserves in respect of such Mortgage Loan or the
Houston Galleria Whole Loan, as applicable, as of the date of calculation over
(ii) the sum of, as of the Due Date occurring in the month of the date of
determination, (A) to the extent not previously advanced by the applicable
Master Servicer or the Trustee, all unpaid interest due on such Mortgage Loan or
the Houston Galleria Whole Loan, as applicable, at a per annum rate equal to its
Mortgage Rate (and any accrued and unpaid interest on any related Companion
Loan), (B) all unreimbursed Advances that have not been, or were not, reimbursed
out of collections on such Mortgage Loan or the Houston Galleria Whole Loan, as
applicable, and interest thereon at the Reimbursement Rate in respect of such
Mortgage Loan or the Houston Galleria Whole Loan, as applicable, and (C) all
currently due and unpaid real estate taxes, assessments, insurance premiums,
ground rents, unpaid Special Servicing Fees and all other amounts due and unpaid
with respect to such Mortgage Loan or the Houston Galleria Whole Loan, as
applicable (which taxes, premiums, ground rents and other amounts have not been
the subject of an Advance by the applicable Master Servicer or the Trustee, as
applicable); provided, however, without limiting the Special Servicer's
obligation to order and obtain such Appraisal, if the Special Servicer has not
obtained the Appraisal or valuation, as applicable, referred to above within 60
days of the Appraisal Reduction Event (or with respect to the Appraisal
Reduction Events set forth in clauses (i) and (vi) of the definition of
Appraisal Reduction Event, within 120 days or 90 days, respectively, after the
initial delinquency for the related Appraisal Reduction Event), the amount of
the Appraisal Reduction shall (except for purposes of determining the
Controlling Holder on the Houston Galleria Companion Loans or the Brookdale
Office Portfolio Companion Loans) be deemed to be an amount equal to 25% of the
current Stated Principal Balance of the related Mortgage Loan (or AB Mortgage
Loan and its related Companion Loan in the case of an AB Mortgage Loan) or the
Houston Galleria Whole Loan, as applicable, until such time as such appraisal or
valuation referred to above is received and the Appraisal Reduction is
calculated. Within 60 days after the Appraisal Reduction Event, the Special
Servicer shall order and receive an Appraisal (the cost of which shall be paid
by the applicable Master Servicer as a Servicing Advance); provided, however,
that with respect to an Appraisal Reduction Event as set forth in clause (i) of
the definition of Appraisal Reduction Event, the Special Servicer shall order
and receive such Appraisal within the 120-day period set forth in such clause
(i), which Appraisal shall be delivered by the Special Servicer to the
applicable Master Servicer, the Directing Certificateholder and the Trustee.
With respect to each Mortgage Loan (other than the Jordan Creek AB
Mortgage Loan) and the Houston Galleria Whole Loan as to which an Appraisal
Reduction has occurred (unless such Mortgage Loan or the Houston Galleria Whole
Loan, as applicable, has become a Corrected Mortgage Loan (for such purposes
taking into account any amendment or modification of such Mortgage Loan or the
Houston Galleria Whole Loan)), the Special Servicer shall, within thirty (30)
days of each anniversary of the related Appraisal Reduction Event, order an
Appraisal (which may be an update of a prior Appraisal), the cost of which shall
be paid by the applicable Master Servicer as a Servicing Advance or conduct an
internal valuation, as applicable. Based upon such Appraisal or internal
valuation of the Special Servicer, the applicable Master Servicer shall
redetermine (in consultation with the Directing Certificateholder) and report to
the Directing Certificateholder, the Special Servicer, and the Trustee the
amount of the Appraisal Reduction with respect to such Mortgage Loan, Companion
Loan or the Houston Galleria Whole Loan, as applicable, and such redetermined
Appraisal Reduction shall replace the prior Appraisal Reduction with respect to
such Mortgage Loan, Companion Loan or the Houston Galleria Whole Loan, as
applicable. The Directing Certificateholder shall have 10 Business Days to
review each calculation of an Appraisal Reduction. Notwithstanding the
foregoing, the Special Servicer will not be required to obtain an Appraisal or
conduct an internal valuation, as applicable, with respect to a Mortgage Loan or
the Houston Galleria Whole Loan which is the subject of an Appraisal Reduction
Event to the extent the Special Servicer has obtained an Appraisal or valuation,
as applicable, with respect to the related Mortgaged Property within the
twelve-month period immediately prior to the occurrence of such Appraisal
Reduction Event. Instead, the Special Servicer may use such prior Appraisal or
valuation, as applicable, in calculating any Appraisal Reduction with respect to
such Mortgage Loan or the Houston Galleria Whole Loan, as applicable; provided,
that the Special Servicer is not aware of any material change to the related
Mortgaged Property having occurred and affecting the validity of such appraisal
or valuation, as applicable and provides notice to the applicable Master
Servicer to use such previous Appraisal or update.
Any Mortgage Loan (other than the Jordan Creek AB Mortgage Loan) (or
the Houston Galleria Whole Loan) previously subject to an Appraisal Reduction,
which loan has become a Corrected Mortgage Loan (for such purposes taking into
account any amendment or modification of such Mortgage Loan or the Houston
Galleria Whole Loan, as applicable), and with respect to which no other
Appraisal Reduction Event has occurred and is continuing, will no longer be
subject to an Appraisal Reduction. Any Appraisal Reduction for the Houston
Galleria Whole Loan shall be allocated, for purposes of determining if a Houston
Galleria Control Appraisal Event has occurred and for determining the amount of
any Advances to be made, as follows: first, to the Houston Galleria Trust
Subordinate Companion Loan in an amount up to the principal balance of the
Houston Galleria Trust Subordinate Companion Loan, second, to the Houston
Galleria Non-Trust Subordinate Companion Loan in an amount up to the principal
balance of the Houston Galleria Non-Trust Subordinate Companion Loan and then,
to the Houston Galleria Loan and the Houston Galleria Pari Passu Companion Loan,
pro rata and pari passu according to their respective Stated Principal Balances.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan and the Houston Galleria Whole
Loan or the related REO Property will be reduced to zero as of the date on which
such Mortgage Loan is paid in full, liquidated, repurchased or otherwise removed
from the Trust Fund.
With respect to the Jordan Creek Loan Pair, for any Distribution
Date as to which an Appraisal Reduction Event has occurred, "Appraisal
Reduction" will be the amount calculated pursuant to the definition of
"Appraisal Reduction Amount" in the related Intercreditor Agreement.
"Appraisal Reduction Event": With respect to any Mortgage Loan and
the Houston Galleria Whole Loan, the earliest of (i) 120 days after an uncured
delinquency (without regard to the application of any grace period) occurs in
respect of such Mortgage Loan, or the Houston Galleria Whole Loan, as
applicable, (ii) the date on which a reduction in the amount of Monthly Payments
on such Mortgage Loan or the Houston Galleria Whole Loan, as applicable, or a
change in any other material economic term of such Mortgage Loan or the Houston
Galleria Whole Loan, as applicable (other than an extension of the Maturity
Date), becomes effective as a result of a modification of such Mortgage Loan or
the Houston Galleria Whole Loan, as applicable, by the Special Servicer, (iii)
the date on which a receiver has been appointed, (iv) 60 days after a Mortgagor
declares bankruptcy, (v) 60 days after the date on which an involuntary petition
of bankruptcy is filed with respect to the related Mortgagor, if not dismissed
within such time, (vi) 120 days (or 90 days with respect to a Specially Serviced
Mortgage Loan) after an uncured delinquency occurs in respect of a Balloon
Payment with respect to such Mortgage Loan or the Houston Galleria Whole Loan,
as applicable, or (vii) immediately after such Mortgage Loan or the Houston
Galleria Whole Loan, as applicable, becomes an REO Loan; provided, however, that
an Appraisal Reduction Event shall not occur at any time when the aggregate
Certificate Balances of all Classes of Certificates (other than the Class A
Certificates) have been reduced to zero. The Special Servicer shall notify the
applicable Master Servicer, or the applicable Master Servicer shall notify the
Special Servicer, as applicable, promptly upon the occurrence of any of the
foregoing events.
"Appraised Value": With respect to any Mortgaged Property, the
appraised value thereof as determined by an Appraisal of the Mortgaged Property
securing the related Mortgage Loan or the Houston Galleria Whole Loan made by an
Independent MAI appraiser selected by the applicable Master Servicer or Special
Servicer, as applicable.
"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue Excess Interest at the rate specified in the related
Mortgage Note and the Mortgagor is required to apply excess monthly cash flow
generated by the related Mortgaged Property to the repayment of the outstanding
principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment": As defined in Section 2.01(c).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership, operation, leasing or disposition of all or a
portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the constant payment required by the related Mortgage Note or the
original amortization schedule thereof (as calculated with interest at the
related Mortgage Rate), if applicable, assuming such Balloon Payment has not
become due, after giving effect to any reduction in the principal balance
thereof occurring in connection with a modification of such Mortgage Loan in
connection with a default or bankruptcy or similar proceedings, and (b) interest
on the Stated Principal Balance of such Mortgage Loan at the applicable Mortgage
Rate (net of interest at the Servicing Fee Rate).
"Authenticating Agent": The Trustee or any of its agents appointed
to act as Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any Distribution
Date and the Majority Mortgage Loans, an amount equal to the sum of (without
duplication):
(a) the aggregate amount relating to the Majority Mortgage Loans on
deposit in each Certificate Account (exclusive of any Net Investment
Earnings contained therein and exclusive of any amount on deposit in or
credited to any portion of each Certificate Account that is held for the
benefit of the Companion Holders) and the Lower-Tier Distribution Account
(without regard to any payments made to or received from the Swap
Counterparty) as of the close of business on the related Determination
Date, exclusive of (without duplication):
(i) all Monthly Payments paid by the Mortgagors that are due
on a Due Date following the end of the related Due Period and, with
respect to the first Due Date, any interest amounts relating to the
period prior to, but due after, the applicable Cut-off Date;
(ii) all unscheduled Principal Prepayments (together with any
related payments of interest allocable to the period following the
related Due Date for the related Mortgage Loan), Liquidation
Proceeds or Insurance and Condemnation Proceeds, in each case,
received subsequent to the related Determination Date (or, with
respect to voluntary Principal Prepayments for each Mortgage Loan
with a Due Date occurring after the related Determination Date, the
related Due Date);
(iii) all amounts payable or reimbursable to any Person from
each Certificate Account pursuant to clauses (ii) through (xvii),
inclusive, and clauses (xix) and (xx) of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Lower-Tier Distribution Account pursuant to clauses (ii) through
(vii), inclusive, of Section 3.05(b);
(v) Excess Interest;
(vi) all Yield Maintenance Charges; and
(vii) all amounts deposited in each Certificate Account, the
Lower-Tier Distribution Account in error;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account to each Certificate
Account for such Distribution Date pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made by the Master
Servicers or the Trustee, as applicable, for such Distribution Date
pursuant to Section 4.03 or 7.05 (net of the related Trustee Fee with
respect to the Mortgage Loans for which such P&I Advances are made);
(d) for the Distribution Date occurring in each March, the Withheld
Amounts remitted to the Lower-Tier Distribution Account pursuant to
Section 3.25(b); and
(e) with respect to the first Distribution Date, the Closing Date
Deposit Amount deposited into the Distribution Account pursuant to Section
2.01(g).
Notwithstanding the investment of funds held in the Certificate Accounts
pursuant to Section 3.06, for purposes of calculating the Available Distribution
Amount, the amounts so invested shall be deemed to remain on deposit in such
account.
"Balloon Mortgage Loan": Any Mortgage Loan or Companion Loan that by
its original terms or by virtue of any modification entered into as of the
Closing Date provides for an amortization schedule extending beyond its Maturity
Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and with respect to any Class A-1, Class A-2, Class X-0,
Xxxxx X-0, Class A-SB, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K Certificate and the
Class A-2FL Regular Interest, a fraction (a) whose numerator is the greater of
(x) zero and (y) the amount by which (i) the Pass-Through Rate on such Class of
Certificates or the Class A-2FL Regular Interest, as applicable, exceeds (ii)
the discount rate used in accordance with the related Mortgage Loan documents in
calculating the Yield Maintenance Charge with respect to such Principal
Prepayment and (b) whose denominator is the amount by which (i) the Mortgage
Rate on such Mortgage Loan exceeds (ii) the discount rate used in accordance
with the related Mortgage Loan documents in calculating the Yield Maintenance
Charge with respect to such Principal Prepayment. However, under no
circumstances shall the Base Interest Fraction be greater than one. If such
discount rate is greater than the Mortgage Rate on such Mortgage Loan, then the
Base Interest Fraction will equal zero. Each Master Servicer shall provide to
the Trustee the discount rate references above for purposes of calculating the
Base Interest Fraction.
"Bid Allocation": With respect to the applicable Master Servicer and
each Sub-Servicer therefor and the proceeds of any bid pursuant to Section
7.01(c), the amount of such proceeds (net of any expenses incurred in connection
with such bid and the transfer of servicing), multiplied by a fraction equal to
(a) the Servicing Fee Amount for the applicable Master Servicer or such
Sub-Servicer therefor, as the case may be, as of such date of determination,
over (b) the aggregate of the Servicing Fee Amounts for the applicable Master
Servicer and all Sub-Servicers therefor as of such date of determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(b).
"Brookdale Office Portfolio AB Mortgage Loan": That certain Mortgage
Loan identified on the Mortgage Loan Schedule as loan number 1.
"Brookdale Office Portfolio Companion Loan": Collectively, those
certain promissory notes B-1 and B-2, which are not assets of the Trust Fund,
secured by the Mortgaged Property securing the Brookdale Office Portfolio AB
Mortgage Loan.
"Brookdale Office Portfolio Loan Pair": Collectively, the Brookdale
Office Portfolio AB Mortgage Loan and two subordinate cross-collateralized and
cross-defaulted companion loans.
"Brookdale Office Portfolio Intercreditor Agreement": That certain
Intercreditor Agreement Among Noteholders, dated as of December 28, 2005, by and
between the B Note Holder specified therein, and Eurohypo AG, New York Branch,
as the A Note Holder.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Overland Park, Kansas,
Pittsburgh, Pennsylvania, Chicago, Illinois or the city and state in which the
Corporate Trust Office of the Trustee, or the principal place of business of any
Master Servicer or the Special Servicer is located, are authorized or obligated
by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP5, as executed and delivered by the
Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": A segregated custodial account or accounts
created and maintained by each Master Servicer pursuant to Section 3.04(a) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled Midland Loan Services, Inc., as Master Servicer No. 1, on behalf of
LaSalle Bank National Association, as Trustee, in trust for the registered
holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP5, Certificate Account" and
GMAC Commercial Mortgage Corporation, as Master Servicer No. 2, on behalf of
LaSalle Bank National Association, as Trustee, in trust for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP5, Certificate Account",
respectively. Any such account or accounts shall be an Eligible Account. Subject
to the related Intercreditor Agreement and taking into account that each
Companion Loan is subordinate to the related AB Mortgage Loan to the extent set
forth in the related Intercreditor Agreement or that the Houston Galleria
Non-Trust Subordinate Companion Loan is subordinate to each of the Houston
Galleria Pari Passu Loans and the Houston Galleria Trust Subordinate Companion
Loan is subordinate to each of the Houston Galleria Pari Passu Loans and the
Houston Galleria Non-Trust Subordinate Companion Loan, in all cases to the
extent set forth in the Houston Galleria Intercreditor Agreement, the subaccount
described in the second paragraph of Section 3.04(b) that is part of a
Certificate Account shall be for the benefit of the related Companion Holder(s),
to the extent funds on deposit in such subaccount are attributed to such
Companion Loan(s) and shall not be an asset of the Trust Fund or the Upper-Tier
REMIC or Lower-Tier REMIC formed hereunder.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates, the Class S Certificates and the Class X
Certificates) and the Class A-2FL Regular Interest, (i) on or prior to the first
Distribution Date, an amount equal to the Original Certificate Balance of such
Class as specified in the Preliminary Statement hereto, and (ii) as of any date
of determination after the first Distribution Date, the Certificate Balance of
such Class of Certificates or the Class A-2FL Regular Interest on the
Distribution Date immediately prior to such date of determination (determined as
adjusted pursuant to Section 1.02(iii)). The Certificate Balance (including the
Original Certificate Balance) of the Class A-2FL Certificates shall be equal at
all times to the Certificate Balance of the Class A-2FL Regular Interest.
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates (other than the Class A-2FL Certificates
and the Residual Certificates) and the Class A-2FL Regular Interest, the amount
of Mortgage Deferred Interest allocated to such Class of Certificates or the
Class A-2FL Regular Interest, as applicable, pursuant to Section 4.06(a).
"Certificate Factor": With respect to any Class of Certificates, as
of any date of determination, a fraction, expressed as a decimal carried to at
least eight (8) places, the numerator of which is the then related Certificate
Balance, and the denominator of which is the related Original Certificate
Balance.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Ownership Certification": As defined in Section 5.06.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided, however, that
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the applicable Master
Servicer, the Special Servicer, the Trustee or any Affiliate thereof shall be
deemed not to be outstanding, and the Voting Rights to which it is entitled
shall not be taken into account in determining whether the requisite percentage
of Voting Rights necessary to effect any such consent, approval or waiver has
been obtained, but only if such consent, approval or waiver sought from such
party would in any way increase the compensation of the Depositor, the
applicable Master Servicer, the Special Servicer or the Trustee or limit the
obligations of the Depositor, the applicable Master Servicer, the Special
Servicer or the Trustee, as applicable, hereunder; provided, however, so long as
there is no Event of Default with respect to the applicable Master Servicer or
the Special Servicer, the applicable Master Servicer, the Special Servicer or
such Affiliate of either shall be entitled to exercise such Voting Rights with
respect to any issue which could reasonably be believed to adversely affect such
party's compensation or increase its obligations or liabilities hereunder;
provided further, however, that such restrictions shall not apply to the
exercise of the Special Servicer's rights (or the applicable Master Servicer's
rights, if any) or the rights of any of their Affiliates as a member of the
Controlling Class. The Trustee shall be entitled to request and rely upon a
certificate of the applicable Master Servicer, the Special Servicer or the
Depositor in determining whether a Certificate is registered in the name of an
Affiliate of such Person. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Class": With respect to any Certificates or Uncertificated
Lower-Tier Interests, all of the Certificates bearing the same alphabetical
(and, if applicable, numerical) Class designation and each designated
Uncertificated Lower-Tier Interest.
"Class A Certificate": Any Class A-1, Class A-1A, Class A-2FL, Class
A-2, Class A-3, Class A-4 and Class A-SB Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to 5.0350%.
"Class A-1A Certificate": A Certificate designated as "Class A-1A"
on the face thereof, in the form of Exhibit A-7 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1A Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate minus
0.1530%.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-3 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Pass-Through Rate": With respect to any Distribution
Date, a fixed per annum rate equal to 5.1980%.
"Class A-2FL Available Funds": With respect to any Distribution
Date, the sum of (i) the total amount of all principal and/or interest
distributions on or in respect of the Class A-2FL Regular Interest with respect
to such Distribution Date and (ii) the amounts, if any, received from the Swap
Counterparty pursuant to the Swap Contract for such Distribution Date, less
(iii) all amounts (exclusive of any Yield Maintenance Charges allocated in
respect of the Class A-2FL Regular Interest) required to be paid to the Swap
Counterparty pursuant to the Swap Contract for such Distribution Date.
"Class A-2FL Certificate": A Certificate designated as "Class A-2FL"
on the face thereof, in the form of Exhibit A-10 hereto, and evidencing an
undivided beneficial in the portion of the Grantor Trust consisting of the Class
A-2FL Regular Interest, the Floating Rate Account, the Swap Contract and the
proceeds thereof.
"Class A-2FL Distribution Conversion": With respect to any
Distribution Date (i) during the continuation of a Swap Default while the
Trustee is pursuing remedies under the Swap Contract pursuant to Section 3.32 or
(ii) following the termination of the Swap Contract, the conversion of
distributions to the Class A-2FL Certificates from distributions based, in part,
on interest payments from the Swap Counterparty under the Swap Contract to
distributions based solely on distributions in respect of the Class A-2FL
Regular Interest, as specified in Section 4.01(k).
"Class A-2FL Fixed Swap Payment": With respect to any Distribution
Date, the amount required to be paid to the Swap Counterparty by the Trust under
the Swap Contract.
"Class A-2FL Floating Swap Payment": With respect to any
Distribution Date, the amount required to be paid to the Trust by the Swap
Counterparty under the Swap Contract.
"Class A-2FL Interest Distribution Amount": With respect to any
Distribution Date, the sum of (a) interest accrued during the related Interest
Accrual Period at the Class A-2FL Pass-Through Rate applicable for such
Distribution Date on the Certificate Balance outstanding immediately prior to
such Distribution Date of such Class and (b) to the extent not previously paid,
amounts of interest distributable on the Class A-2FL Certificates for all
previous Distribution Dates.
"Class A-2FL Net Swap Payment": With respect to the related Interest
Accrual Period, the excess, if any of (i) the Class A-2FL Fixed Swap Payment,
over (ii) the Class A-2FL Floating Swap Payment.
"Class A-2FL Pass-Through Rate": With respect to any Distribution
Date for which a Class A-2FL Distribution Conversion has not occurred and is not
continuing, a per annum rate equal to LIBOR plus 0.1250%, and with respect to
any Distribution Date on which a Class A-2FL Distribution Conversion has
occurred and is continuing, a per annum rate equal to the Class A-2FL Regular
Interest Pass-Through Rate.
"Class A-2FL 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-2FL Regular Interest on such
Distribution Date.
"Class A-2FL Regular Interest": The uncertificated interest
corresponding to the Class A-2FL Certificates and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2FL Regular Interest Distribution Amount": With respect to
any Distribution Date, the aggregate distributions on the Class A-2FL Regular
Interest pursuant to this Agreement, including, but not limited to, any payments
of interest, principal, Yield Maintenance Charges and/or reimbursements.
"Class A-2FL Regular Interest Pass-Through Rate": With respect to
any Distribution Date, a per annum rate equal to 5.0780%.
"Class A-3 Certificate": A Certificate designated as "Class A-3" on
the face thereof, in the form of Exhibit A-4 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate minus
0.1260%.
"Class A-4 Certificate": A Certificate designated as "Class A-4" on
the face thereof, in the form of Exhibit A-5 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate minus
0.1550%.
"Class A-J Certificate": A Certificate designated as "Class A-J" on
the face thereof, in the form of Exhibit A-11 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-J Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate minus
0.0340%.
"Class A-M Certificate": A Certificate designated as "Class A-M" on
the face thereof, in the form of Exhibit A-10 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-M Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate minus
0.1130%.
"Class A-SB Certificate": A Certificate designated as "Class A-SB"
on the face thereof, in the form of Exhibit A-6 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-SB Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate minus
0.1650%.
"Class A-SB Planned Principal Balance": With respect to any
Distribution Date, the planned principal amount for such Distribution Date
specified in Schedule 4 hereto relating to the Class A-SB Certificates.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-12 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-13 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-14 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-15 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-16 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-17 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-18 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class HG-1 Certificate": A Certificate designated as "Class HG-1"
on the face thereof, in the form of Exhibit A-31 hereto.
"Class HG-1 Pass Through Rate": With respect to any Distribution
Date, a per annum rate equal to 5.5560%.
"Class HG-2 Certificate": A Certificate designated as "Class HG-2"
on the face thereof, in the form of Exhibit A-32 hereto.
"Class HG-2 Pass Through Rate": With respect to any Distribution
Date, a per annum rate equal to 5.5560%.
"Class HG-3 Certificate": A Certificate designated as "Class HG-3"
on the face thereof, in the form of Exhibit A-33 hereto.
"Class HG-3 Pass Through Rate": With respect to any Distribution
Date, a per annum rate equal to 5.5560%.
"Class HG-4 Certificate": A Certificate designated as "Class HG-4"
on the face thereof, in the form of Exhibit A-34 hereto.
"Class HG-4 Pass Through Rate": With respect to any Distribution
Date, a per annum rate equal to 5.5560%.
"Class HG-5 Certificate": A Certificate designated as "Class HG-5"
on the face thereof, in the form of Exhibit A-35 hereto.
"Class HG-5 Pass Through Rate": With respect to any Distribution
Date, a per annum rate equal to 5.5560%.
"Class HG Available Distribution Amount": With respect to any
Distribution Date and the Houston Galleria Trust Subordinate Companion Loan, an
amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Houston Galleria Trust
Subordinate Companion Loan on deposit (exclusive of any Net Investment
Earnings) in the Lower-Tier Distribution Account as of close of business
on the related Determination Date (all such amounts, to the extent
allocable to the Houston Galleria Trust Subordinate Companion Loan
pursuant to the Houston Galleria Intercreditor Agreement), exclusive of
(without duplication):
(i) all Monthly Payments paid by the related Mortgager that
are due on a Due Date following the end of the related Due Period
with respect to such Mortgage Loan;
(ii) all unscheduled Principal Prepayments (together with any
related payments of interest allocable to the period following the
related Due Date for the related Mortgage Loan), Liquidation
Proceeds and Insurance and Condemnation Proceeds received subsequent
to the related Determination Date with respect to such Mortgage
Loan;
(iii) all amounts payable or reimbursable to any Person from
the Certificate Account with respect to such Mortgage Loan pursuant
to clauses (ii) through (xvii), inclusive and clause (xix) of
Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Lower-Tier Distribution Account with respect to such Mortgage
Loan pursuant to clauses (ii) through (vii), inclusive, of Section
3.05(b);
(v) all Yield Maintenance Charges with respect to such
Mortgage Loan; and
(vi) all amounts deposited in the Certificate Account with
respect to such Mortgage Loan or Lower-Tier Distribution Account, as
the case may be, in error;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account in respect of such
Mortgage Loan to the Certificate Account for such Distribution Date
pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made by the applicable
Master Servicer or the Trustee, as applicable, for such Distribution Date
pursuant to Section 4.03 or 7.05 (net of the related Trustee Fee) with
respect to such Mortgage Loan; and
(d) for the Distribution Date occurring in each March, the Withheld
Amount for such Mortgage Loan remitted to the Lower-Tier Distribution
Account pursuant to Section 3.25(b).
"Class HG Certificate Control Transfer Event": Shall exist with
respect to any Class of Class HG Certificates if and for so long as the
Certificate Balance (as adjusted to reflect the allocation of any (i) principal
payments, (ii) Appraisal Reductions and (iii) realized losses allocated to such
Class of Class HG Certificates) of such Class of Class HG Certificates is less
than 25% of its initial Certificate Balance; provided, however, a Class HG
Certificate Control Transfer Event will be deemed to occur with respect to all
Classes of Class HG Certificates if, and for so long as, a Houston Galleria
Trust Control Appraisal Event exists.
"Class HG Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Class HG Principal
Shortfall for such Distribution Date, (b) the Houston Galleria Scheduled
Principal Distribution Amount for such Distribution Date and (c) the Class HG
Unscheduled Principal Distribution Amount for such Distribution Date.
"Class HG Principal Shortfall": For any Distribution Date after the
initial Distribution Date, the amount, if any, by which (a) the Class HG
Principal Distribution Amount for the preceding Distribution Date, exceeds (b)
the aggregate amount distributed in respect of principal on the Class HG
Certificates for such preceding Distribution Date. The Class HG Principal
Shortfall for the initial Distribution Date will be zero.
"Class HG Scheduled Principal Distribution Amount": With respect to
any Distribution Date and the Houston Galleria Trust Subordinate Companion Loan,
and to the extent allocable to the Houston Galleria Trust Subordinate Companion
Loan pursuant to the Houston Galleria Intercreditor Agreement, the aggregate of
the principal portions of (a) the Monthly Payment (excluding a Balloon Payment)
due in respect of the Houston Galleria Trust Subordinate Companion Loan during
or, if and to the extent not previously received in respect of a preceding
Distribution Date, prior to, the related Due Period, and any Assumed Scheduled
Payment for the related Due Period, in each case, to the extent paid by the
related Mortgagor as of the Business Day preceding the related P&I Advance Date
(and not previously distributed to Certificateholders of the Class HG
Certificates), and (b) any Balloon Payment in respect of the Houston Galleria
Trust Subordinate Companion Loan to the extent received during the related Due
Period (including any applicable grace periods), and to the extent not included
in clause (a) above.
"Class HG Unscheduled Principal Distribution Amount": With respect
to any Distribution Date and the Houston Galleria Trust Subordinate Companion
Loan (to the extent allocable to the Houston Galleria Trust Subordinate
Companion Loan pursuant to the Houston Galleria Intercreditor Agreement), the
aggregate of:
(a) all Principal Prepayments received on the Houston Galleria Trust
Subordinate Companion Loan during the related Due Period; and
(b) the principal portions of all Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds (net of Special Servicing Fees,
Liquidation Fees, accrued interest on Advances and other additional Trust
Fund expenses incurred in connection with the related Mortgage Loan) and,
if applicable, REO Revenues received with respect to the Houston Galleria
Trust Subordinate Companion Loan and the related REO Loans, if any, during
the related Due Period, but in each case only to the extent that such
principal portion represents a recovery of principal for which no advance
was previously made pursuant to Section 4.03 in respect of a preceding
Distribution Date.
"Class HG-X" Certificate": A Certificate designated as "Class HG-X"
on the face thereof, in the form of Exhibit A-36 hereto, and evidencing a
"regular interest" in the Upper Tier REMIC for purposes of the REMIC Provisions.
"Class HG-X Notional Amount": As of any date of determination, an
amount equal to the Stated Principal Balance of the Houston Galleria Trust
Subordinate Companion Loan.
"Class HG-X Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to 0.0810%.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-19 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-20 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-21 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 4.9260% and (ii) the Weighted
Average Net Mortgage Rate.
"Class LA-1-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-6 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-7 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-8 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-9 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-10 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-11 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-12 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-13 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-14 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-15 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2FL-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2FL-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2FL-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-6 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-7 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-J Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-M Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-SB-6 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LC Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LD Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LE Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LHG-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LHG-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LHG-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LHG-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LHG-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LHG-X Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper Tier
REMIC and having the Original Notional Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LJ-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LJ-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LJ-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LK-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LK-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LK-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LL-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LL-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LM-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LM-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LN Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LNR Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LO Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LP Uncertificated Interest": An uncertificated regular
interest in the Lower Tier REMIC which is held as an asset of the Upper Tier
REMIC and having the Original Lower Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LQ-1 Uncertificated Interest": An uncertificated regular
interest in the Lower Tier REMIC which is held as an asset of the Upper Tier
REMIC and having the Original Lower Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LQ-2 Uncertificated Interest": An uncertificated regular
interest in the Lower Tier REMIC which is held as an asset of the Upper Tier
REMIC and having the Original Lower Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as "Class LR" on
the face thereof, in the form of Exhibit A-30 hereto, evidencing the sole class
of "residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions.
"Class M Certificate": A Certificate designated as "Class M" on the
face thereof, in the form of Exhibit A-22 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class M Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 4.9260% and (ii) the Weighted
Average Net Mortgage Rate.
"Class N Certificate": A Certificate designated as "Class N" on the
face thereof, in the form of Exhibit A-23 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 4.9260% and (ii) the Weighted
Average Net Mortgage Rate.
"Class Notional Amount": The Class X-1 Notional Amount or the Class
X-2 Notional Amount, as the context requires.
"Class NR Certificate": A Certificate designated as "Class NR" on
the face thereof, in the form of Exhibit A-27 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class NR Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 4.9650% and (ii) the Weighted
Average Net Mortgage Rate.
"Class O Certificate": A Certificate designated as "Class O" on the
face thereof, in the form of Exhibit A-24 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class O Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 4.9260% and (ii) the Weighted
Average Net Mortgage Rate.
"Class P Certificate": A Certificate designated as "Class P" on the
face thereof, in the form of Exhibit A-25 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class P Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 4.9260% and (ii) the Weighted
Average Net Mortgage Rate.
"Class Q Certificate": A Certificate designated as "Class Q" on the
face thereof, in the form of Exhibit A-26 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class Q Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 4.9260% and (ii) the Weighted
Average Net Mortgage Rate.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof in the form of Exhibit A-29 hereto, and evidencing the sole class
of "residual interest" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class S Certificate": A Certificate designated as "Class S" on the
face thereof, in the form of Exhibit A-28 hereto, and evidencing an undivided
beneficial interest in the portion of the Grantor Trust consisting of the Excess
Interest, the Excess Interest Distribution Account and the proceeds thereof.
"Class Unpaid Interest Shortfall": As to any Distribution Date and
any Class of Certificates (other than the Class A-2FL Certificates) or the Class
A-2FL Regular Interest, the excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in respect of such Class of Certificates or
the Class A-2FL Regular Interest, as applicable, for the immediately preceding
Distribution Date and (ii) any outstanding Class Unpaid Interest Shortfall
payable to such Class of Certificates or the Class A-2FL Regular Interest, as
applicable, on such preceding Distribution Date over (b) the aggregate amount in
respect of interest actually distributed to such Class of Certificates or the
Class A-2FL Regular Interest, as applicable, on such immediately preceding
Distribution Date. The Class Unpaid Interest Shortfall with respect to any Class
of Certificates and the Class A-2FL Regular Interest as of the initial
Distribution Date is zero. No interest shall accrue on Class Unpaid Interest
Shortfalls.
"Class X Certificates": The Class X-1 Certificates and the Class X-2
Certificates.
"Class X-1 Certificate": Any one of the Certificates with a "Class
X-1" designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-1 Notional Amount": As of any date of determination, the
sum of the then Component Notional Amounts of all the Components.
"Class X-1 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-1 Strip Rates for the respective
Components for such Distribution Date (weighted on the basis of the respective
Component Notional Amounts of such Components outstanding immediately prior to
such Distribution Date).
"Class X-1 Strip Rate": (A) With respect to any Class of the
Components (other than those Components that are Class X-2 Components which are
included for purposes of calculating the Class X-2 Notional Amount for such
Distribution Date) for any Distribution Date, a rate per annum equal to (i) the
Weighted Average Net Mortgage Rate for such Distribution Date, minus (ii) the
Pass-Through Rate for the Related Certificates and (B) with respect to any
Components that are Class X-2 Components which are included for purposes of
calculating the Class X-2 Notional Amount for such Distribution Date (i) for any
Distribution Date occurring on or before the Class X-2 Termination Date, (x) the
Weighted Average Net Mortgage Rate for such Distribution Date minus (y)(1) with
respect to XX-0-0, Xxxxxxxxx XX-0-0, Component XA-1-3, Component XA-1-4,
Component XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Component XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Component XA-1A-10, Component XA-1A-11, Component XA-1A-12,
Component XA-1A-13, Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XA-4-1, Component XA-4-2, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-XX-0, Component XA-SB-2, Component XA-SB-3, Component XA-SB-4,
Component XA-SB-5, Component XA-SB-6, Component XA-M and Component XA-J, the sum
of (I) the Class X-2 Strip Rate for the applicable Class X-2 Component and (II)
the Pass-Through Rate for the Related Certificates for such Distribution Date
and (2) for each other Class X-2 Component, the greater of (I) the Class X-2
Reference Rate for such Distribution Date and (II) the Pass-Through Rate for the
Related Certificate for such Distribution Date, and (ii) for any Distribution
Date occurring after the Class X-2 Termination Date, a rate per annum equal to
(x) the Weighted Average Net Mortgage Rate for such Distribution Date, minus (y)
the Pass-Through Rate for the Related Certificates for such Distribution Date;
provided, that in no event shall any Class X-1 Strip Rate be less than zero.
"Class X-2 Certificate": Any one of the Certificates with a "Class
X-2" designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-2 Components": Each of Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0,
Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1A-10, Component XA-1A-11,
Component XA-1A-12, Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0XX-0, Component XA-2FL-2, Component XX-0XX-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-4-5,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-XX-0, Component XA-SB-2,
Component XA-SB-3, Component XA-SB-4, Component XA-SB-5, Component XA-SB-6,
Component XA-M, Component XA-J, Component XB, Component XC, Component XD,
Component XE, Component XF, Component XG-1, Component XG-2, Component XG-3,
Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XJ-2,
Component XJ-3, Component XK-1, Component XK-2, Component XK-3, Component XL-1,
Component XL-2, Component XM-1, Component XM-2, Component XN, Component XO,
Component XP, Component XQ-1 and Component XQ-2.
"Class X-2 Notional Amount": (i) With respect to any Distribution
Date on or prior to the Distribution Date in June 2006, the sum of the then
Component Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1A-10, Component XA-1A-11, Component
XA-1A-12, Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx
XX-0XX-0, Component XA-2FL-2, Component XX-0XX-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XA-3-1, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-XX-0, Component XA-SB-2, Component XA-SB-3,
Component XA-SB-4, Component XA-SB-5, Component XA-SB-6, Component XA-M,
Component XA-J, Component XB, Component XC, Component XD, Component XE,
Component XF, Component XG-1, Component XG-2, Component XG-3, Component XX-0,
Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XJ-2, Component XJ-3,
Component XK-1, Component XK-2, Component XK-3, Component XL-1, Component XL-2,
Component XM-1, Component XM-2, Component XN, Component XO, Component XP,
Component XQ-1 and Component XQ-2.
(ii) With respect to any Distribution Date after the
Distribution Date in June 2006 through and including the
Distribution Date in December 2006, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Component XA-1A-6, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Component XA-1A-10, Component XA-1A-11, Component XA-1A-12,
Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0XX-0, Component XA-2FL-2, Component XX-0XX-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XA-4-5, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-XX-0, Component XA-SB-2, Component XA-SB-3,
Component XA-SB-4, Component XA-SB-5, Component XA-SB-6, Component
XA-M, Component XA-J, Component XB, Component XC, Component XD,
Component XE, Component XF, Component XG-1, Component XG-2,
Component XG-3, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0,
Xxxxxxxxx XX-0, Component XJ-2, Component XJ-3, Component XK-1,
Component XK-2, Component XK-3, Component XL-1, Component XL-2,
Component XM-1, Component XM-2, Component XN, Component XO,
Component XP, Component XQ-1 and Component XQ-2.
(iii) With respect to any Distribution Date after the
Distribution Date in December 2006 through and including the
Distribution Date in June 2007, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0,
Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1A-10, Component
XA-1A-11, Component XA-1A-12, Component XX-0X-00, Xxxxxxxxx
XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0XX-0, Component
XA-2FL-2, Component XX-0XX-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XA-3-1, Component XA-3-2, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0-0, Component XA-4-4, Component XA-4-5,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-XX-0, Component
XA-SB-2, Component XA-SB-3, Component XA-SB-4, Component XA-SB-5,
Component XA-SB-6, Component XA-M, Component XA-J, Component XB,
Component XC, Component XD, Component XE, Component XF, Component
XG-1, Component XG-2, Component XG-3, Component XX-0, Xxxxxxxxx
XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XJ-2, Component
XJ-3, Component XK-1, Component XK-2, Component XK-3, Component
XL-1, Component XL-2, Component XM-1, Component XM-2, Component XN,
Component XO, Component XP, Component XQ-1 and Component XQ-2.
(iv) With respect to any Distribution Date after the
Distribution Date in June 2007 through and including the
Distribution Date in December 2007, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0,
Component XA-1A-10, Component XA-1A-11, Component XA-1A-12,
Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0XX-0, Component XA-2FL-2, Component XX-0XX-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XA-4-5, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-XX-0, Component XA-SB-2, Component XA-SB-3,
Component XA-SB-4, Component XA-SB-5, Component XA-SB-6, Component
XA-M, Component XA-J, Component XB, Component XC, Component XD,
Component XE, Component XF, Component XG-1, Component XG-2,
Component XG-3, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0,
Xxxxxxxxx XX-0, Component XJ-2, Component XJ-3, Component XK-1,
Component XK-2, Component XK-3, Component XL-1, Component XL-2,
Component XM-1, Component XM-2, Component XN, Component XO,
Component XP and Component XQ-2.
(v) With respect to any Distribution Date after the
Distribution Date in December 2007 through and including the
Distribution Date in June 2008, the sum of the then Component
Notional Amounts of Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1A-10, Component XA-1A-11,
Component XA-1A-12, Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0XX-0, Component XA-2FL-3,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-XX-0, Component XA-SB-2, Component XA-SB-3,
Component XA-SB-4, Component XA-SB-5, Component XA-SB-6, Component
XA-M, Component XA-J, Component XB, Component XC, Component XD,
Component XE, Component XF, Component XG-1, Component XG-2,
Component XG-3, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0,
Xxxxxxxxx XX-0, Component XJ-2, Component XJ-3, Component XK-1,
Component XK-2, Component XK-3, Component XL-1, Component XL-2 and
Component XM-2.
(vi) With respect to any Distribution Date after the
Distribution Date in June 2008 through and including the
Distribution Date in December 2008, the sum of the then Component
Notional Amounts of Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Component XA-1A-10, Component XA-1A-11, Component XA-1A-12,
Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0XX-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-XX-0, Component XA-SB-2,
Component XA-SB-3, Component XA-SB-4, Component XA-SB-5, Component
XA-SB-6, Component XA-M, Component XA-J, Component XB, Component XC,
Component XD, Component XE, Component XF, Component XG-1, Component
XG-2, Component XG-3, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx
XX-0, Xxxxxxxxx XX-0, Component XJ-2, Component XJ-3, Component
XK-1, Component XK-2, Component XK-3 and Component XL-2.
(vii) With respect to any Distribution Date after the
Distribution Date in December 2008 through and including the
Distribution Date in June 2009, the sum of the then Component
Notional Amounts of Component XX-0X-0, Xxxxxxxxx XX-0X-0, Component
XA-1A-10, Component XA-1A-11, Component XA-1A-12, Component
XA-1A-13, Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XA-3-2, Component XA-4-1, Component
XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-4-5,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-XX-0, Component
XA-SB-2, Component XA-SB-3, Component XA-SB-4, Component XA-SB-5,
Component XA-SB-6, Component XA-M, Component XA-J, Component XB,
Component XC, Component XD, Component XE, Component XF, Component
XG-1, Component XG-2, Component XG-3, Component XX-0, Xxxxxxxxx
XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XJ-2, Component
XJ-3, Component XK-2 and Component XK-3.
(viii) With respect to any Distribution Date after the
Distribution Date in June 2009 through and including the
Distribution Date in December 2009, the sum of the then Component
Notional Amounts of Component XX-0X-0, Xxxxxxxxx XX-0X-00, Xxxxxxxxx
XX-0X-00, Xxxxxxxxx XX-0X-00, Component XA-1A-13, Component
XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component
XA-4-5, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-XX-0,
Component XA-SB-2, Component XA-SB-3, Component XA-SB-4, Component
XA-SB-5, Component XA-SB-6, Component XA-M, Component XA-J,
Component XB, Component XC, Component XD, Component XE, Component
XF, Component XG-1, Component XG-2, Component XG-3, Component XH-1,
Component XH-2, Component XH-3, Component XJ-1, Component XJ-2,
Component XJ-3 and Component XK-3.
(ix) With respect to any Distribution Date after the
Distribution Date in December 2009 through and including the
Distribution Date in June 2010, the sum of the then Component
Notional Amounts of Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0X-00, Component XX-0X-00,
Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component
XA-4-4, Component XA-4-5, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-XX-0, Component XA-SB-2, Component XA-SB-3, Component
XA-SB-4, Component XA-SB-5, Component XA-SB-6, Component XA-M,
Component XA-J, Component XB, Component XC, Component XD, Component
XE, Component XF, Component XG-1, Component XG-2, Component XG-3,
Component XH-1, Component XH-2, Component XH-3, Component XJ-2 and
Component XJ-3.
(x) With respect to any Distribution Date after the
Distribution Date in June 2010 through and including the
Distribution Date in December 2010, the sum of the then Component
Notional Amounts of Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0X-00, Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-4-5, Component
XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-XX-0, Component XA-SB-3,
Component XA-SB-4, Component XA-SB-5, Component XA-SB-6, Component
XA-M, Component XA-J, Component XB, Component XC, Component XD,
Component XE, Component XF, Component XG-2, Component XG-3,
Component XH-1, Component XH-2, Component XH-3 and Component XJ-3.
(xi) With respect to any Distribution Date after the
Distribution Date in December 2010 through and including the
Distribution Date in June 2011, the sum of the then Component
Notional Amounts of Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0X-00, Component XA-4-4, Component
XA-4-5, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-XX-0,
Component XA-SB-4, Component XA-SB-5, Component XA-SB-6, Component
XA-M, Component XA-J, Component XB, Component XC, Component XD,
Component XE, Component XF, Component XG-1, Component XG-2,
Component XG-3, Component XH-2 and Component XH-3.
(xii) With respect to any Distribution Date after the
Distribution Date in June 2011 through and including the
Distribution Date in December 2011, the sum of the then Component
Notional Amounts of Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-XX-0, Component XA-SB-5, Component XA-SB-6,
Component XA-M, Component XA-J, Component XB, Component XC,
Component XD, Component XE, Component XF, Component XG-1, Component
XG-2, Component XG-3 and Component XH-3.
(xiii) With respect to any Distribution Date after the
Distribution Date in December 2011 through and including the
Distribution Date in June 2012, the sum of the then Component
Notional Amounts of Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-SB-5, Component
XA-SB-6, Component XA-M, Component XA-J, Component XB, Component XC,
Component XD, Component XE, Component XF, Component XG-2 and
Component XG-3.
(xiv) With respect to any Distribution Date after the
Distribution Date in June 2012 through and including the
Distribution Date in December 2012, the sum of the then Component
Notional Amounts of Component XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-XX-0, Component XA-M, Component XA-J, Component XB, Component XC,
Component XD, Component XE, Component XF and Component XG-3.
(xv) after the Distribution Date in December 2012, $0.
"Class X-2 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-2 Strip Rates for the respective Class
X-2 Components that are Class X-2 Components which are included for purposes of
calculating the Class X-2 Notional Amount for such Distribution Date (weighted
on the basis of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date).
"Class X-2 Reference Rate": With respect to any Distribution Date,
the rate for such Distribution Date specified in Schedule 3 hereto.
"Class X-2 Strip Rate": With respect to each Class X-2 Component for
any Distribution Date, a rate per annum equal to (i) for any Distribution Date
occurring on or before the Class X-2 Termination Date, (A) with respect to
Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0,
Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Component XA-1A-10, Component XA-1A-11, Component XA-1A-12, Component XA-1A-13,
Component XA-1A-14 and Component XA-1A-15, the lesser of (1) 0.1230% and (2) the
Weighted Average Net Mortgage Rate for such Distribution Date minus the
Pass-Through Rate in effect on such Distribution Date for the Class A-1A
Certificates, (B) with respect to Component XA-3-1 and Component XA-3-2, the
lesser of (1) 0.0960% and (2) the Weighted Average Net Mortgage Rate for such
Distribution Date minus the Pass-Through Rate in effect on such Distribution
Date for the Class A-3 Certificates, (C) with respect to Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-4-4, Component XA-4-5,
Component XA-4-6 and Component XA-4-7, the lesser of (1) 0.1250% and (2) the
Weighted Average Net Mortgage Rate for such Distribution Date minus the
Pass-Through Rate in effect on such Distribution Date for the Class A-4
Certificates, (D) with respect to Component XX-XX-0, Xxxxxxxxx XX-XX-0,
Component XA-SB-3, Component XA-SB-4, Component XA-SB-5 and Component XA-SB-6,
the lesser of (1) 0.1350% and (2) the Weighted Average Net Mortgage Rate for
such Distribution Date minus the Pass-Through Rate in effect on such
Distribution Date for the Class A-SB Certificates, (E) with respect to Component
XA-M, the lesser of (1) 0.0830% and (2) the Weighted Average Net Mortgage Rate
for such Distribution Date minus the Pass-Through Rate in effect on such
Distribution Date for the Class A-M Certificates, (F) with respect to Component
XA-J, the lesser of (1) 0.0040% and (2) the Weighted Average Net Mortgage Rate
for such Distribution Date minus the Pass-Through Rate in effect on such
Distribution Date for the Class A-J Certificates and (G) with respect to each
other Class X-2 Component, (1) the lesser of (I) the Weighted Average Net
Mortgage Rate for such Distribution Date and (II) the Class X-2 Reference Rate
for such Distribution Date, minus (2) the Pass-Through Rate for the Related
Certificates (provided, that in no event shall any Class X-2 Strip Rate be less
than zero) and (ii) for any Distribution Date occurring after the Class X-2
Termination Date, 0% per annum.
"Class X-2 Termination Date": The Distribution Date in August 2012.
"Clearstream": Clearstream Banking, societe anonyme or any successor
thereto.
"Closing Date": December 28, 2005.
"Closing Date Deposit Amount": $2,389,756.23, representing the
aggregate amount of interest that would have accrued at the related Mortgage
Rates for the 31-day period ending December 31, 2005, for those Mortgage Loans
which do not have their first Monthly Payment due until February 2006.
"CMSA": The Commercial Mortgage Securities Association, or any
successor organization reasonably acceptable to the Trustee, the Master
Servicers and the Directing Certificateholder.
"CMSA Advance Recovery Report": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Advance Recovery Report" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Bond Level File": The data file in the "CMSA Bond Level File"
format substantially in the form of and containing the information called for
therein, or such other form for the presentation of such information as may be
approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Bond Level
File" available as of the Closing Date on the CMSA website, as is reasonably
acceptable to the Trustee.
"CMSA Collateral Summary File": The data file in the "CMSA
Collateral Summary File" format substantially in the form of and containing the
information called for therein, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Collateral Summary File" available as of the Closing Date on the CMSA
website, as is reasonably acceptable to the Trustee and the Master Servicers.
"CMSA Comparative Financial Status Report": The monthly report in
"Comparative Financial Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Comparative Financial Status Report" available as
of the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicers or the Special Servicer, as applicable.
"CMSA Delinquent Loan Status Report": The monthly report in the
"Delinquent Loan Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for the form of the "Delinquent Loan Status Report" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicers or the Special Servicer, as applicable.
"CMSA Financial File": The data file in the "CMSA Financial File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Financial File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicers or the Special Servicer, as
applicable.
"CMSA Historical Liquidation Report": The monthly report in the
"Historical Liquidation File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, or such other form
for the presentation of such information as may be approved from time to time by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Historical Liquidation Report" available as of the Closing Date
on the CMSA website, is reasonably acceptable to the Master Servicers or the
Special Servicer, as applicable.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": The monthly report in the "Historical Loan Modification and Corrected
Mortgage Loan Report" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Historical Loan Modification and Corrected Mortgage Loan
Report" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Master Servicers or the Special Servicer, as applicable.
"CMSA Investor Reporting Package (IRP)": The collection of reports
specified by the CMSA from time to time as the "CMSA Investor Reporting
Package." As of the Closing Date, the CMSA IRP contains nine electronic files
((1) CMSA Loan Set up File, (2) CMSA Loan Periodic Update File, (3) CMSA
Property File, (4) CMSA Bond Level File, (5) CMSA Collateral Summary File, (6)
CMSA Financial File, (7) CMSA Special Servicer Loan File), (8) CMSA Advance
Recovery Report and (9) CMSA Realized Loss Report and ten surveillance reports
((1) CMSA Servicer Watch List, (2) CMSA Delinquent Loan Status Report, (3) CMSA
REO Status Report, (4) CMSA Comparative Financial Status Report, (5) CMSA
Historical Loan Modification and Corrected Mortgage Loan Report, (6) CMSA
Historical Liquidation Report, (7) CMSA Operating Statement Analysis Report, (8)
CMSA NOI Adjustment Worksheet, (9) CMSA Loan Level Reserve/LOC Report and (10)
CMSA Reconciliation of Funds Report). The CMSA IRP shall be substantially in the
form of, and containing the information called for in, the downloadable forms of
the "CMSA IRP" available as of the Closing Date on the CMSA website, or such
other form for the presentation of such information and containing such
additional information or reports as may from time to time be approved by the
CMSA for commercial mortgage backed securities transaction generally and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "CMSA IRP" available as of the Closing Date on the
CMSA website, as is reasonably acceptable to the Master Servicers, the Special
Servicer and the Trustee. For the purposes of the production of the CMSA
Comparative Financial Status Report by any Master Servicer or the Special
Servicer for any such report that is required to state information for any
period prior to the Cut-off Date, any Master Servicer or the Special Servicer,
as the case may be, may conclusively rely (without independent verification),
absent manifest error, on information provided to it by the Mortgage Loan
Sellers or by the related Mortgagor or (x) in the case of such a report produced
by any Master Servicer, by the Special Servicer (if other than any Master
Servicer or an Affiliate thereof) and (y) in the case of such a report produced
by the Special Servicer, by any Master Servicer (if other than the Special
Servicer or an Affiliate thereof).
"CMSA Loan Level Reserve/LOC Report": The monthly report in the
"CMSA Loan Level Reserve/LOC Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Loan Level Reserve/LOC Report" available as of
the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicers.
"CMSA Loan Periodic Update File": The data file in the "CMSA Loan
Periodic Update File" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA Loan Periodic Update File" available as of the Closing
Date on the CMSA website, as is reasonably acceptable to the Master Servicers
and the Trustee.
"CMSA Loan Setup File": The data file in the "CMSA Loan Setup File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Loan Setup File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicers and the Trustee.
"CMSA NOI Adjustment Worksheet": The worksheet in the "NOI
Adjustment Worksheet" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA NOI Adjustment Worksheet" available as of the Closing Date
on the CMSA website, is reasonably acceptable to the applicable Master Servicer
or the Special Servicer, as the case may be.
"CMSA Operating Statement Analysis Report": The monthly report in
the "Operating Statement Analysis Report" format substantially in the form of
and containing the information called for therein for the Mortgage Loans, or
such other form for the presentation of such information as may be approved from
time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Operating Statement
Analysis Report" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the applicable Master Servicer or the Special Servicer,
as the case may be.
"CMSA Property File": The data file in the "CMSA Property File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Property File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the applicable Master Servicer or the Special Servicer,
as the case may be.
"CMSA Reconciliation of Funds Report": The monthly report in the
"Reconciliation of Funds" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Reconciliation of Funds" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Trustee.
"CMSA REO Status Report": The report in the "REO Status Report"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA REO Status Report" available as of the Closing Date on the CMSA website,
is reasonably acceptable to the applicable Master Servicer or the Special
Servicer, as the case may be.
"CMSA Servicer Watch List and Portfolio Review Guidelines": As of
each Determination Date a report, including and identifying each Non-Specially
Serviced Mortgage Loan satisfying the "CMSA Portfolio Review Guidelines"
approved from time to time by the CMSA in the "CSMA Master Servicer Watch List"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form (including other portfolio
review guidelines) for the presentation of such information as may be approved
from time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Servicer Watch List"
available as of the Closing Date on the CMSA website, is reasonably acceptable
to the applicable Master Servicer.
"CMSA Special Servicer Loan File": The data file in the "CMSA
Special Servicer Loan File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, or such other form
for the presentation of such information as may be approved from time to time by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "CMSA Special Servicer Loan File" available as of the Closing
Date on the CMSA website, is reasonably acceptable to the Special Servicer.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Commission": The Securities and Exchange Commission.
"Companion Distribution Account": Either of the Group A Companion
Distribution Account or the Group B Companion Distribution Account, as the
context requires.
"Companion Holder": Each of the holders of the related Companion
Loans.
"Companion Loan": Each of the Companion Loans as defined in the
Preliminary Statement.
"Companion Paying Agent": Either of the Group A Companion Paying
Agent or the Group B Companion Paying Agent in its role as a Companion Paying
Agent appointed pursuant to Section 3.30.
"Companion Register": The register maintained by the Companion
Paying Agent pursuant to Section 3.31.
"Compensating Interest Payments": With respect to each Mortgage Loan
(or REO Loan), an amount as of any Distribution Date equal to the lesser of (i)
the aggregate amount of Prepayment Interest Shortfalls incurred in connection
with voluntary principal prepayments received in respect of the Mortgage Loans
(other than a Specially Serviced Mortgage Loan or a Mortgage Loan on which the
Special Servicer allowed a prepayment on a date other than the applicable Due
Date) and (ii) the aggregate of (A) that portion of the applicable Master
Servicer's Servicing Fees for such Distribution Date that is, in the case of
each and every Mortgage Loan and REO Loan for which such Servicing Fees are
being paid for such Due Period, calculated at 0.005% per annum, and (B) all
Prepayment Interest Excesses with respect to the applicable Master Servicer
received in respect of the Mortgage Loans for the related Distribution Date and
(C) to the extent earned solely on principal prepayments, Net Investment
Earnings received by the applicable Master Servicer during such Due Period with
respect to the Mortgage Loans and related Companion Loan related to such
Prepayment Interest Shortfalls. However, if a Prepayment Interest Shortfall
occurs as a result of the applicable Master Servicer's allowing the related
Mortgagor to deviate from the terms of the related Mortgage Loan documents
regarding Principal Prepayments (other than (X) subsequent to a default under
the related Mortgage Loan documents, (Y) pursuant to applicable law or a court
order, or (Z) at the request or with the consent of the Directing
Certificateholder), then, for purposes of calculating the Compensating Interest
Payment for the related Distribution Date, the amount in clause (ii) above shall
be the aggregate of (1) all Servicing Fees with respect to the applicable Master
Servicer for such Due Period, (2) all Prepayment Interest Excesses with respect
to the applicable Master Servicer and (3) to the extent earned solely on
Principal Prepayments, Net Investment Earnings received by the applicable Master
Servicer during such Due Period with respect to the Mortgage Loan subject to
such Principal Prepayment. In no event will the rights of the Certificateholders
to offset the aggregate Prepayment Interest Shortfalls be cumulative.
"Component": Each of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XA-1-4, Component XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component
XA-1A-10, Component XA-1A-11, Component XA-1A-12, Component XX-0X-00, Xxxxxxxxx
XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0XX-0, Component XA-2FL-2, Component
XX-0XX-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-3-1, Component
XA-3-2, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-4-4,
Component XA-4-5, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-XX-0,
Component XA-SB-2, Component XA-SB-3, Component XA-SB-4, Component XA-SB-5,
Component XA-SB-6, Component XA-M, Component XA-J, Component XB, Component XC,
Component XD, Component XE, Component XF, Component XG-1, Component XG-2,
Component XG-3, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0,
Component XJ-2, Component XJ-3, Component XK-1, Component XK-2, Component XK-3,
Component XL-1, Component XL-2, Component XM-1, Component XM-2, Component XN,
Component XO, Component XP, Component XQ-1 and Component XQ-2, Component XXX-0,
Xxxxxxxxx XXX-0, Component LHG-3, Component LHG-4, Component LHG-5 and Component
LHG-X and Component XNR.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then Lower-Tier Principal Amount
of its Related Uncertificated Lower-Tier Interest.
"Component XA-1-1": One of the 69 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1-1 Uncertificated Interest as of
any date of determination.
"Component XA-1-2": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-2 Uncertificated Interest as of any date of determination.
"Component XA-1-3": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-3 Uncertificated Interest as of any date of determination.
"Component XA-1-4": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-4 Uncertificated Interest as of any date of determination.
"Component XA-1-5": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-5 Uncertificated Interest as of any date of determination.
"Component XA-1A-1": One of the 69 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1A-1 Uncertificated Interest as of
any date of determination.
"Component XA-1A-2": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-2 Uncertificated Interest as of any date of determination.
"Component XA-1A-3": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-3 Uncertificated Interest as of any date of determination.
"Component XA-1A-4": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-4 Uncertificated Interest as of any date of determination.
"Component XA-1A-5": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-5 Uncertificated Interest as of any date of determination.
"Component XA-1A-6": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-6 Uncertificated Interest as of any date of determination.
"Component XA-1A-7": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-7 Uncertificated Interest as of any date of determination.
"Component XA-1A-8": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-8 Uncertificated Interest as of any date of determination.
"Component XA-1A-9": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-9 Uncertificated Interest as of any date of determination.
"Component XA-1A-10": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-10 Uncertificated Interest as of any date of determination.
"Component XA-1A-11": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-11 Uncertificated Interest as of any date of determination.
"Component XA-1A-12": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-12 Uncertificated Interest as of any date of determination.
"Component XA-1A-13": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-13 Uncertificated Interest as of any date of determination.
"Component XA-1A-14": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-14 Uncertificated Interest as of any date of determination.
"Component XA-1A-15": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-15 Uncertificated Interest as of any date of determination.
"Component XA-2FL-1": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-2FL-1 Uncertificated Interest as of any date of determination.
"Component XA-2FL-2": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-2FL-2 Uncertificated Interest as of any date of determination.
"Component XA-2FL-3": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-2FL-3 Uncertificated Interest as of any date of determination.
"Component XA-2-1": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-2-1 Uncertificated Interest as of any date of determination.
"Component XA-2-2": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LA-2-2 Uncertificated Interest as of any date of determination.
"Component XA-3-1": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-1 Uncertificated Interest as of any date of determination.
"Component XA-3-2": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-2 Uncertificated Interest as of any date of determination.
"Component XA-4-1": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-1 Uncertificated Interest as of any date of determination.
"Component XA-4-2": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-2 Uncertificated Interest as of any date of determination.
"Component XA-4-3": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-3 Uncertificated Interest as of any date of determination.
"Component XA-4-4": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-4 Uncertificated Interest as of any date of determination.
"Component XA-4-5": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-5 Uncertificated Interest as of any date of determination.
"Component XA-4-6": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-6 Uncertificated Interest as of any date of determination.
"Component XA-4-7": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-7 Uncertificated Interest as of any date of determination.
"Component XA-J": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-J Uncertificated Interest as of any date of determination.
"Component XA-M": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-M Uncertificated Interest as of any date of determination.
"Component XA-SB-1": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-1 Uncertificated Interest as of any date of determination.
"Component XA-SB-2": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-2 Uncertificated Interest as of any date of determination.
"Component XA-SB-3": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-3 Uncertificated Interest as of any date of determination.
"Component XA-SB-4": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-4 Uncertificated Interest as of any date of determination.
"Component XA-SB-5": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-5 Uncertificated Interest as of any date of determination.
"Component XA-SB-6": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-SB-6 Uncertificated Interest as of any date of determination.
"Component XB": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LB Uncertificated Interest as of any date of determination.
"Component XC": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LC Uncertificated Interest as of any date of determination.
"Component XD": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LD Uncertificated Interest as of any date of determination.
"Component XE": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LE Uncertificated Interest as of any date of determination.
"Component XF": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LF Uncertificated Interest as of any date of determination.
"Component XG-1": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LG-1 Uncertificated Interest as of any date of determination.
"Component XG-2": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LG-2 Uncertificated Interest as of any date of determination.
"Component XG-3": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LG-3 Uncertificated Interest as of any date of determination.
"Component XH-1": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LH-1 Uncertificated Interest as of any date of determination.
"Component XH-2": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LH-2 Uncertificated Interest as of any date of determination.
"Component XH-3": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LH-3 Uncertificated Interest as of any date of determination.
"Component XJ-1": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LJ-1 Uncertificated Interest as of any date of determination.
"Component XJ-2": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LJ-2 Uncertificated Interest as of any date of determination.
"Component XJ-3": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LJ-3 Uncertificated Interest as of any date of determination.
"Component XK-1": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LK-1 Uncertificated Interest as of any date of determination.
"Component XK-2": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LK-2 Uncertificated Interest as of any date of determination.
"Component XK-3": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LK-3 Uncertificated Interest as of any date of determination.
"Component XL-1": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LL-1 Uncertificated Interest as of any date of determination.
"Component XL-2": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LL-2 Uncertificated Interest as of any date of determination.
"Component XM-1": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LM-1 Uncertificated Interest as of any date of determination.
"Component XM-2": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LM-2 Uncertificated Interest as of any date of determination.
"Component XN": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LN Uncertificated Interest as of any date of determination.
"Component XNR": One of the 69 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LNR Uncertificated Interest as of any
date of determination.
"Component XO": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LO Uncertificated Interest as of any date of determination.
"Component XP": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LP Uncertificated Interest as of any date of determination.
"Component XQ-1": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LQ-1 Uncertificated Interest as of any date of determination.
"Component XQ-2": One of the 69 components of the Class X-1
Certificates and one of the 66 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LQ-2 Uncertificated Interest as of any date of determination.
"Control Appraisal Event": With respect to any AB Mortgage Loan and
the Houston Galleria Whole Loan, shall have the meaning assigned to such term,
or any similar term, in the related Intercreditor Agreement.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates (other than the Class X Certificates)
then outstanding that has a then aggregate Certificate Balance at least equal to
25% of the Original Certificate Balance of such Class of Certificates. As of the
Closing Date, the Controlling Class will be the Class NR Certificates.
"Controlling Class Certificateholder's Option Period": As defined in
Section 3.18(a)(ii).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Trustee from time to time by such Holder (or
Certificate Owner).
"Controlling Class Option Holder": As defined in Section 3.18(a)(i).
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and Trust Services Group,
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP5 (telephone number (000) 000-0000).
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that
has become current and remained current for three consecutive Monthly Payments
(for such purposes taking into account any modification or amendment of such
Mortgage Loan or Companion Loan, whether by a consensual modification or in
connection with a bankruptcy, insolvency or similar proceeding involving the
Mortgagor), and (provided, that no additional default is foreseeable in the
reasonable judgment of the Special Servicer and no other event or circumstance
exists that causes such Mortgage Loan or Companion Loan to otherwise constitute
a Specially Serviced Mortgage Loan) the servicing of which the Special Servicer
has returned to the applicable Master Servicer pursuant to Section 3.21(a).
"Crossed Group": With respect to any Mortgage Loan, such Mortgage
Loan and all other Mortgage Loans that are cross-collateralized and
cross-defaulted with such Mortgage Loan.
"Crossed Loan": A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans.
"Crossed Loan Repurchase Criteria": (i) The weighted average Debt
Service Coverage Ratio for all remaining related Crossed Loans for the four most
recent calendar quarters preceding the repurchase or substitution shall not be
less than the greater of (a) the Debt Service Coverage Ratio for all such
related Crossed Loans, including the affected Crossed Loan, for the four most
recent calendar quarters preceding the repurchase or substitution, and (b)
1.25x, (ii) the weighted average LTV Ratio for all remaining related Crossed
Loans determined as of the Cut-off Date based upon an Appraisal obtained by the
Special Servicer at the expense of the related Mortgage Loan Seller shall not be
greater than the lesser of (a) the weighted average LTV Ratio for all such
related Crossed Loans, including the affected Crossed Loan, determined as of the
Cut-off Date based upon an Appraisal obtained by the Special Servicer at the
expense of the related Mortgage Loan Seller and (b) 75%, (iii) the Mortgage Loan
Seller, at its expense, shall have furnished the Trustee with an Opinion of
Counsel that any modification relating to the repurchase or substitution of a
Crossed Loan shall not cause an Adverse REMIC Event, (iv) the related Mortgage
Loan Seller either (A) causes the affected Crossed Loans to become not
cross-collateralized and cross-defaulted with the remaining related Crossed
Loans prior to such repurchase or substitution or (B) otherwise forbears from
exercising enforcement rights against the Primary Collateral of any Crossed Loan
remaining in the Trust Fund and (v) the Directing Certificateholder shall have
consented to the repurchase or substitution of the affected Crossed Loan, which
consent shall not be unreasonably withheld.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, any of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall be the initial Custodian.
"Cut-off Date": With respect to each Mortgage Loan, the related Due
Date of the Mortgage Loan in December 2005, or, with respect to each Mortgage
Loan that has its first Due Date in January 2006 or February 2006, the later of
December 1, 2005 and the origination date of such Mortgage Loan.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan
or Companion Loan, the outstanding principal balance of such Mortgage Loan or
Companion Loan, as the case may be, as of the Cut-off Date, after application of
all payments of principal due on or before such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan for
any twelve month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Mortgage Loan
during such period; provided, that with respect to the Mortgage Loans indicated
on Schedule 2, which pay interest only for a specified period of time set forth
in the related Mortgage Loan documents and then pay principal and interest, the
related Monthly Payment will be calculated (for purposes of this definition
only) to include interest and principal (based on the remaining amortization
term indicated in the Mortgage Loan Schedule).
"Default Interest": With respect to any Mortgage Loan or Companion
Loan, all interest accrued in respect of such Mortgage Loan or Companion Loan
during such Due Period provided for in the related Mortgage Note or Mortgage as
a result of a default (exclusive of late payment charges) that is in excess of
interest at the related Mortgage Rate accrued on the unpaid principal balance of
such Mortgage Loan or Companion Loan outstanding from time to time.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent at
least sixty days in respect of its Monthly Payments or more than thirty days (or
sixty days with respect to the circumstances described in clause (ii) of the
definition of Servicing Transfer Event) delinquent in respect of its Balloon
Payment, if any, in either case such delinquency to be determined without giving
effect to any grace period permitted by the related Mortgage or Mortgage Note
and without regard to any acceleration of payments under the related Mortgage
and Mortgage Note or (ii) as to which the applicable Master Servicer or Special
Servicer has, by written notice to the related Mortgagor, accelerated the
maturity of the indebtedness evidenced by the related Mortgage Note. For the
avoidance of doubt, a defaulted Companion Loan does not constitute a "Defaulted
Mortgage Loan".
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Accounts": As defined in Section 3.20(k).
"Defect": As defined in Section 2.02(f).
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": Any Certificate in definitive, fully
registered form without interest coupons.
"Denomination": As defined in Section 5.01(a).
"Depositor": X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
a Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date.
"Determination Information": As defined in Section 3.18(a)(i).
"Directing Certificateholder": The Controlling Class
Certificateholder (or a representative thereof identified to the Master
Servicers, the Special Servicer and the Trustee) selected by more than 50% of
the Controlling Class Certificateholders, by Certificate Balance, as certified
by the Certificate Registrar from time to time; provided, however, that (i)
absent such selection, or (ii) until a Directing Certificateholder is so
selected or (iii) upon receipt of a notice from a majority of the Controlling
Class Certificateholders, by Certificate Balance, that a Directing
Certificateholder is no longer designated, the Controlling Class
Certificateholder that owns the largest aggregate Certificate Balance of the
Controlling Class will be the Directing Certificateholder which will initially
be American Capital Strategies, Ltd.; provided, further, that, as used in this
Agreement, except for Sections 2.02, 3.18, 3.20(a) and 3.20(h) and the
definition of "Houston Galleria Controlling Holder", with respect to the
Brookdale Office Portfolio Loan Pair, the Houston Galleria Whole Loan and the
Jordan Creek Loan Pair, so long as no Control Appraisal Event exists with
respect to the related Whole Loan, the Directing Certificateholder, solely with
respect to the related Whole Loan, shall be the related Companion Holder or
Houston Galleria Controlling Holder, as applicable.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, that are not customarily
provided to tenants in connection with the rental of space "for occupancy only"
within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers, the use of such REO Property in a trade or
business conducted by the Trust Fund or on behalf of a Companion Holder or the
performance of any construction work on the REO Property (other than the
completion of a building or improvement, where more than 10% of the construction
of such building or improvement was completed before default became imminent),
other than through an Independent Contractor; provided, however, that an REO
Property shall not be considered to be Directly Operated solely because the
Trustee (or the Special Servicer on behalf of the Trustee) establishes rental
terms, chooses tenants, enters into or renews leases, deals with taxes and
insurance or makes decisions as to repairs or capital expenditures with respect
to such REO Property or takes other actions consistent with Treasury Regulations
Section 1.856-4(b)(5)(ii).
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and a
majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, any international organization or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Trustee based upon an Opinion
of Counsel as provided to the Trustee (at no expense to the Trustee) that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC
or any Person having an Ownership Interest in any Class of Certificates (other
than such Person) to incur a liability for any federal tax imposed under the
Code that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any
Distribution Date, (A) as to any Class of Regular Certificates (other than the
Class A-2FL Certificates) and the Class A-2FL Regular Interest, the Accrued
Certificate Interest in respect of such Class of Regular Certificates or the
Class A-2FL Regular Interest, as applicable, for such Distribution Date, reduced
(to not less than zero) by any allocations to such Class of Certificates (other
than in the case of the Class X Certificates) or the Class A-2FL Regular
Interest, as applicable, of (i) the product of (a) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (b) a fraction,
expressed as a decimal, the numerator of which is the Accrued Certificate
Interest in respect of such Class of Certificates or the Class A-2FL Regular
Interest, as applicable, for such Distribution Date, and the denominator of
which is the aggregate Accrued Certificate Interest in respect of all the
Classes of Regular Certificates (other than the Class A-2FL Certificates and the
Class X Certificates) and the Class A-2FL Regular Interest for such Distribution
Date, and (ii) any Certificate Deferred Interest for such Distribution Date
allocated to such Class of Certificates or the Class A-2FL Regular Interest, as
applicable, pursuant to Section 4.06(a) and (B) with respect to any Class of the
Class HG Certificates, the Accrued Certificate Interest in respect of such Class
of Certificates for such Distribution Date, reduced (to not less than zero) by
(i) any allocations, if any, of the Net Aggregate Prepayment Interest Shortfall
with respect to the Houston Galleria Trust Subordinate Companion Loan for such
Distribution Date allocated to such Class of Certificates as set forth below,
and (ii) any Certificate Deferred Interest for such Distribution Date allocated
to such Class pursuant to Section 4.06(a). The Net Aggregate Prepayment Interest
Shortfall for the Houston Galleria Trust Subordinate Companion Loan, if any, for
each Distribution Date shall be allocated, up to an amount equal to the lesser
of (i) any such Net Aggregate Prepayment Interest Shortfall and (ii) any Accrued
Certificate Interest in respect of the particular Class of related Certificates
for such Distribution Date, first, to the Class HG-5 Certificates, then to the
Class HG-4 Certificates, then to the Class HG-3 Certificates, then to the Class
HG-2 Certificates and then to the Class HG-1 Certificates.
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account, the Floating Rate Account and the
Excess Interest Distribution Account, all of which may be subaccounts of a
single Eligible Account.
"Distribution Date": The 15th day of each month, or, if such 15th
day is not a Business Day, on the next succeeding Business Day, beginning in
January 2006.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Mortgage Loan or Companion Loan,
on or prior to its Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment thereon is scheduled to be first
due, (ii) any Mortgage Loan or Companion Loan after the Maturity Date therefor,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on such Mortgage Loan or Companion Loan had been scheduled to be
first due, and (iii) any REO Loan, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on the related Mortgage Loan or
Companion Loan had been scheduled to be first due.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan or Companion Loan, the period commencing on the day immediately succeeding
the Due Date for such Mortgage Loan or Companion Loan occurring in the month
preceding the month in which such Distribution Date occurs and ending on and
including the Due Date for such Mortgage Loan or Companion Loan occurring in the
month in which such Distribution Date occurs; provided, that the first Due
Period with respect to Mortgage Loans with their first Due Date in January 2006
or February 2006 shall begin on the Cut-off Date of such Mortgage Loan.
Notwithstanding the foregoing, in the event that the last day of a Due Period
(or applicable grace period) is not a Business Day, any payments received with
respect to the Mortgage Loans or Companion Loan relating to such Due Period on
the Business Day immediately following such day shall be deemed to have been
received during such Due Period and not during any other Due Period.
"Eligible Account": Either (i) a segregated account or accounts
maintained with a federal or state chartered depository institution or trust
company (including the Trustee), (A) the long-term unsecured debt obligations of
which are rated at least "A+" by S&P, if the deposits are to be held in such
account for 30 days or more, and the short-term debt obligations of which have a
short-term rating of not less than "A-1" by S&P, if the deposits are to be held
in such account for less than 30 days, (B) the long-term unsecured debt
obligations of which are rated at least "Aa3" by Moody's, if the deposits are to
be held in such account for 30 days or more, and the short-term debt obligations
of which have a short-term rating of not less than "P-1" from Moody's, if the
deposits are to be held in such account for less than 30 days, (C) a segregated
account or accounts maintained with PNC Bank, National Association so long as
PNC Bank, National Association (1) has a long-term unsecured debt rating of at
least "A1" (if the deposits are to be held in the account for more than 30 days)
and a short-term rating of at least "P-1" (if the deposits are to be held in the
account for 30 days or less) from Moody's, (2) has a long-term unsecured debt
rating of at least "A" (if the deposits are to be held in the account for 30
days or more) and a short-term deposit or short-term unsecured debt rating of at
least "A-1" (if the deposits are to be held in the account for less than 30
days) from S&P or (3) has a long-term unsecured debt rating of at least "A" (if
the deposits are to be held in the account for more than 30 days) and a
short-term deposit or short-term unsecured debt rating of at least "F-1" (if the
deposits are to be held in the account for 30 days or less) from Fitch or (D)
such other account or accounts with respect to which each of the Rating Agencies
shall have confirmed in writing that the then current rating assigned to any of
the Certificates will not be qualified, downgraded or withdrawn by reason
thereof, or (ii) a segregated trust account or accounts maintained with the
corporate trust department of a federal or state chartered depository
institution or trust company that, in either case, has corporate trust powers,
acting in its fiduciary capacity, the long-term deposit or unsecured debt
obligations of which, or if it is the wholly-owned subsidiary of an entity the
long-term deposit or unsecured obligations of which, are rated at least "Baa3"
by Moody's; provided, that any state chartered depository institution or trust
company is subject to regulation regarding fiduciary funds substantially similar
to 12 C.F.R. ss. 9.10(b). Eligible Accounts may bear interest. No Eligible
Account shall be evidenced by a certificate of deposit, passbook or other
similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, the American Society of Testing Materials Standard
Sections 1527-99 or any successor thereto published by the American Society of
Testing Materials.
"Environmental Indemnity Agreement": With respect to any Mortgage
Loan, any agreement between the Mortgagor (or a guarantor thereof) and the
originator of such Mortgage Loan relating to the Mortgagor's obligation to
remediate or monitor or indemnify for any environmental problems relating to the
related Mortgaged Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(c)(i)(A).
"ERISA Restricted Certificate": Any Class L, Class M, Class N, Class
O, Class P, Class Q, Class NR, Class HG-1, Class HG-2, Class HG-3, Class HG-4,
Class HG-5 or Class HG-X Certificate; provided, that any such Certificate: (a)
will cease to be considered an ERISA Restricted Certificate and (b) will cease
to be subject to the transfer restrictions contained in Section 5.02(c) if, as
of the date of a proposed transfer of such Certificate, either (i) it is rated
in one of the four highest generic ratings categories by a Rating Agency or (ii)
relevant provisions of ERISA would permit the transfer of such Certificate to a
Plan.
"Escrow Payment": Any payment received by any Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground lease
rents and similar items in respect of the related Mortgaged Property, including
amounts for deposit to any reserve account.
"Euroclear": Euroclear Bank societe anonyme or any successor
thereto.
"Eurohypo": Eurohypo AG, New York Branch, a German banking
corporation, or its successor in interest.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on such Mortgage Loan after the Anticipated Repayment Date allocable to
the Excess Rate, including all interest accrued thereon. The Excess Interest
shall not be an asset of either the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate account or accounts (or as a
subaccount of the Distribution Account) by the Trustee pursuant to Section
3.04(c), which shall be entitled "LaSalle Bank National Association, as Trustee,
in trust for the registered Holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-LDP5, Excess Interest Distribution Account," and which must be an Eligible
Account (or a subaccount of an Eligible Account). The Excess Interest
Distribution Account shall not be an asset of either the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans indicated
on the Mortgage Loan Schedule as having a Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time.
"Xxxxxx Xxx": Federal National Mortgage Association or any successor
thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": A reasonable determination by the
Special Servicer, in consultation with the Directing Certificateholder, with
respect to any Defaulted Mortgage Loan or Corrected Mortgage Loan (and if
applicable, any defaulted Companion Loan) or REO Property (other than a Mortgage
Loan or REO Property, as the case may be, that was purchased by any of the
Mortgage Loan Sellers pursuant to Section 6 of the applicable Mortgage Loan
Purchase Agreement, the Controlling Class Option Holder, the applicable
Companion Holder or the Special Servicer pursuant to Section 3.18(b) or the
Houston Galleria Controlling Holder pursuant to Sections 3.18(f) and 3.18(g), a
Companion Holder pursuant to Section 3.18(d), any mezzanine lender pursuant to
Section 3.18(e) or the applicable Master Servicer, Special Servicer, the Holders
of the Controlling Class, or the Holders of the Class LR Certificates pursuant
to Section 9.01) that there has been a recovery of all Insurance and
Condemnation Proceeds, Liquidation Proceeds, REO Revenue and other payments or
recoveries that, in the Special Servicer's judgment, which judgment was
exercised without regard to any obligation of the Special Servicer to make
payments from its own funds pursuant to Section 3.07(b), will ultimately be
recoverable.
"FIRREA": The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as it may be amended from time to time.
"Fitch": Fitch, Inc., and its successor in interest. If neither
Fitch nor any successor remains in existence, "Fitch" shall be deemed to refer
to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Master Servicers and the Special Servicer, and
specific ratings of Fitch herein referred shall be deemed to refer to the
equivalent ratings of the party so designated.
"Floating Rate Account": The trust account or accounts created and
maintained as a separate account or accounts (or as a subaccount of the
Distribution Account) by the Trustee pursuant to Section 3.04(b), which shall be
entitled "LaSalle Bank National Association, as Trustee, in trust for the
registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass Through Certificates, Series 2005-LDP5 Class A-2FL
Certificates, Floating Rate Account," and which must be an Eligible Account (or
a subaccount of an Eligible Account). The Floating Rate Account shall not be an
asset of either the Lower-Tier REMIC or the Upper-Tier REMIC formed hereunder.
"Xxxxxxx Mac": Federal Home Loan Mortgage Corporation or any
successor thereto.
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan the
excess of (i) Liquidation Proceeds of the Mortgage Loan or related REO Property
net of any related Liquidation Expenses, unreimbursed Advances, Liquidation
Fees, unreimbursed interest on Advances, unpaid Servicing Fees, and unpaid
Special Servicing Fees and additional Trust Fund expenses over (ii) the Purchase
Price for such Mortgage Loan on the date on which such Liquidation Proceeds were
received.
"Gain-on-Sale Reserve Account": A custodial account or accounts (or
subaccount of the Distribution Account) created and maintained by the Trustee,
pursuant to Section 3.04(d) on behalf of the Trustee in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Trustee, in trust for the registered Holders of X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-LDP5, Gain-on-Sale Reserve Account." Any such account shall be an Eligible
Account or a subaccount of an Eligible Account.
"General Servicing Standard": As defined in Section 3.01(a).
"GMAC": GMAC Commercial Mortgage Corporation.
"GMAC Servicing Standard": As defined in Section 3.01(a).
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of (i) the Excess Interest, the Excess Interest Distribution Account
and the proceeds thereof, beneficial ownership of which is represented by the
Class S Certificates, and (ii) the Class A-2FL Regular Interest, the Swap
Contract, the Floating Rate Account and the proceeds thereof, beneficial
ownership of which is represented by the Class A-2FL Certificates.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan": shall mean any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": shall mean any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 2.
"Group A Companion Distribution Account": With respect to the Group
A Companion Loans, the separate account created and maintained by the Group A
Companion Paying Agent pursuant to Section 3.04(b) and held on behalf of the
related Companion Holders, which shall be entitled "Midland Loan Services, Inc.,
as Companion Paying Agent for the holders of the Group A Companion Loans of the
Companion Loans, relating to the X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass Through Certificates, Series
2005-LDP5". The Group A Companion Distribution Account shall not be an asset of
the Trust Fund, but instead shall be held by the holders of the Group A
Companion Paying Agent on behalf of the Group A Companion Loans. Any such
account shall be an Eligible Account and may be a subaccount of the Certificate
Account.
"Group A Companion Loan": With respect to any Group A Mortgage Loan,
the related Companion Loan(s).
"Group A Companion Paying Agent": Midland Loan Services Inc., in its
role as a Companion Paying Agent appointed pursuant to Section 3.30.
"Group A Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Servicing Group A, together with any
other Mortgage Loan that is substituted in replacement thereof pursuant to or as
contemplated by the related Mortgage Loan Purchase Agreement.
"Group B Companion Distribution Account": With respect to the Group
B Companion Loans, the separate account created and maintained by the Group B
Companion Paying Agent pursuant to Section 3.04(b) and held on behalf of the
related Companion Holders, which shall be entitled "GMAC Commercial Mortgage
Corporation, as Companion Paying Agent for the holders of Group B Companion
Loans of the Companion Loans, relating to the X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Commercial Mortgage Pass Through Certificates, Series
2005-LDP5". The Group B Companion Distribution Account shall not be an asset of
the Trust Fund, but instead shall be held by the Group B Companion Paying Agent
on behalf of the holders of the Group B Companion Loans. Any such account shall
be an Eligible Account and may be a subaccount of the Certificate Account.
"Group B Companion Loan": With respect to any Group B Mortgage Loan,
the related Companion Loan(s).
"Group B Companion Paying Agent": GMAC Commercial Mortgage
Corporation, in its role as a Companion Paying Agent appointed pursuant to
Section 3.30.
"Group B Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Servicing Group B, together with any
other Mortgage Loan that is substituted in replacement thereof pursuant to or as
contemplated by the related Mortgage Loan Purchase Agreement.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, radon
gas, petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory," "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Houston Galleria Collateral Support Deficit": As defined in Section
4.04(d).
"Houston Galleria Companion Loans": The Houston Galleria Pari Passu
Companion Loan and the Houston Galleria Non-Trust Subordinate Companion Loan.
"Houston Galleria Companion Loan Holders": The holders of the
Houston Galleria Companion Loans.
"Houston Galleria Companion Loan Securities": For so long as the
Houston Galleria Loan, the Houston Galleria Trust Subordinate Companion Loan or
a successor REO Mortgage Loan with respect to the Houston Galleria Loan or the
Houston Galleria Trust Subordinate Companion Loan is part of the Trust Fund, any
class of securities backed, wholly or partially, by any of the Houston Galleria
Companion Loans.
"Houston Galleria Control Appraisal Event": With respect to the
Houston Galleria Whole Loan, a "Control Appraisal Event" with respect to the
Houston Galleria Non-Trust Subordinate Companion Loan pursuant to the Houston
Galleria Intercreditor Agreement.
"Houston Galleria Controlling Holder": The holder of more than 50%
of Percentage Interests in the Class of Class HG Certificates bearing the latest
sequential designation and for which no Class HG Certificate Control Transfer
Event exists, except during the continuance of a Houston Galleria Trust Control
Appraisal Event, in which case the holder of a majority of the outstanding
principal balance of the Houston Galleria Non-Trust Subordinate Companion Loan
shall be the Houston Galleria Controlling Holder except during the continuance
of a Houston Galleria Control Appraisal Event in which case the Directing
Certificateholder shall be the Houston Galleria Controlling Holder.
Notwithstanding anything to the contrary contained herein, to the extent the
holder of the Houston Galleria Non-Trust Subordinate Companion Loan is not the
Houston Galleria Controlling Holder, the Houston Galleria Non-Trust Subordinate
Companion Loan holder shall be provided with copies of all notices, requests for
consents and approvals, reports and correspondence provided to the Houston
Galleria Controlling Holder.
"Houston Galleria Event of Default": An "Event of Default" as
defined under the Houston Galleria Whole Loan documents.
"Houston Galleria Intercreditor Agreement": The intercreditor
agreement, by and among the holders of the Houston Galleria Loan, the holders of
the Houston Galleria Pari Passu Companion Loan, the holder of the Houston
Galleria Non-Trust Subordinate Companion Loan and the Houston Galleria Trust
Subordinate Companion Loan, relating to the relative rights of such holders of
the Houston Galleria Mortgage Whole Loan, as the same may be further amended in
accordance with the terms thereof.
"Houston Galleria Loan": With respect to the Houston Galleria Whole
Loan, the mortgage loan which is included in the Trust (identified as Mortgage
Loan No. 2 on the Mortgage Loan Schedule), which is senior in right of payment
to the related Houston Galleria Non-Trust Subordinate Companion Loan and the
Houston Galleria Trust Subordinate Companion Loan and pari passu in right of
payment to the Houston Galleria Pari Passu Companion Loan to the extent set
forth in the Houston Galleria Whole Loan and as provided in the Houston Galleria
Intercreditor Agreement.
"Houston Galleria Mortgaged Property": The mortgaged property which
secures the Houston Galleria Whole Loan.
"Houston Galleria Non-Trust Subordinate Companion Loan": With
respect to the Houston Galleria Whole Loan, the related promissory note made by
the related Mortgagor and secured by the Mortgage on the Houston Galleria
Mortgaged Property and designated as promissory note B, which is not included in
the Trust and which is subordinate in right of payment to the Houston Galleria
Loan and the Houston Galleria Pari Passu Companion Loan, but is senior in right
of payment to the Houston Galleria Trust Subordinate Companion Loan to the
extent set forth in the related Mortgage Loan documents and as provided in the
Houston Galleria Intercreditor Agreement.
"Houston Galleria Pari Passu Companion Loan": With respect to the
Houston Galleria Whole Loan, collectively, the related promissory notes made by
the related Mortgagor and secured by the Mortgage on the Houston Galleria
Mortgaged Property and designated as promissory notes A-2A and A-2B, which are
not included in the Trust, that are senior in right of payment to the Houston
Galleria Non-Trust Subordinate Companion Loan and the Houston Galleria Trust
Subordinate Companion Loan and pari passu in right of payment with the Houston
Galleria Loan to the extent set forth in the Houston Galleria Intercreditor
Agreement.
"Houston Galleria Pari Passu Loans": With respect to the Houston
Galleria Whole Loan, the related promissory notes made by the Houston Galleria
Mortgagor and secured by the Mortgage on the Houston Galleria Mortgaged Property
and designated as promissory note A-1, promissory note A-2A and promissory note
A-2B, that are pari passu with respect to each other and senior in right of
payment to the Houston Galleria Subordinate Companion Loans to the extent set
forth in the Houston Galleria Whole Loan and as provided in the Houston Galleria
Intercreditor Agreement.
"Houston Galleria Purchase Option": As defined in Section 3.18(g).
"Houston Galleria Subordinate Companion Loans": Each of the Houston
Galleria Non-Trust Subordinate Companion Loan and the Houston Galleria Trust
Subordinate Companion Loan.
"Houston Galleria Trust Control Appraisal Event": Shall mean, with
respect to the Houston Galleria Whole Loan, a "Note C Control Appraisal Event"
as defined in the Houston Galleria Intercreditor Agreement.
"Houston Galleria Trust Subordinate Companion Loan": With respect to
the Houston Galleria Whole Loan, the related promissory note made by the related
Mortgagor and secured by the Mortgage on the Houston Galleria Mortgaged Property
and designated as promissory note C, which is included in the Trust and which is
subordinate in right of payment to the Houston Galleria Loan, the Houston
Galleria Pari Passu Companion Loan and the Houston Galleria Non-Trust
Subordinate Companion Loan to the extent set forth in the related Mortgage Loan
documents and as provided in the Houston Galleria Intercreditor Agreement.
"Houston Galleria Trust Subordinate Companion Loan Noteholder": The
holder of the Houston Galleria Trust Subordinate Companion Loan.
"Houston Galleria Whole Loan": The Houston Galleria Loan, together
with the Houston Galleria Pari Passu Companion Loan, the Houston Galleria
Non-Trust Subordinate Companion Loan and the Houston Galleria Trust Subordinate
Companion Loan, each of which is secured by the same Mortgage on the Houston
Galleria Mortgaged Property. References herein to the Houston Galleria Whole
Loan shall be construed to refer to the aggregate indebtedness under the Houston
Galleria Pari Passu Loans and the Houston Galleria Subordinate Companion Loans.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Trustee, the Depositor, each
Master Servicer, the Special Servicer, the Directing Certificateholder and any
and all Affiliates thereof, (ii) does not have any material direct financial
interest in or any material indirect financial interest in any of the Trustee,
the Depositor, any Master Servicer, the Special Servicer, the Directing
Certificateholder, or any Affiliate thereof and (iii) is not connected with the
Trustee, the Depositor, any Master Servicer, the Special Servicer, the Directing
Certificateholder or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Trustee, the Depositor, any Master Servicer, the Special Servicer, the Directing
Certificateholder or any Affiliate thereof merely because such Person is the
beneficial owner of 1% or less of any Class of securities issued by the Trustee,
the Depositor, any Master Servicer, the Special Servicer, the Directing
Certificateholder, the Houston Galleria Representative or any Affiliate thereof,
as the case may be, provided, that such beneficial ownership constitutes less
than 1% of the total assets of such Person.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust within the meaning of Section
856(d)(3) of the Code if the Trust were a real estate investment trust (except
that the ownership test set forth in that Section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the
applicable Master Servicer, any Companion Holder or the Trust, delivered to the
Trustee, any Companion Holder and the applicable Master Servicer), so long as
the Trust does not receive or derive any income from such Person and provided
that the relationship between such Person and the Trust is at arm's length, all
within the meaning of Treasury Regulations Section 1.856-4(b)(5) (except that
any Master Servicer or the Special Servicer shall not be considered to be an
Independent Contractor under the definition in this clause (i) unless an Opinion
of Counsel has been delivered to the Trustee to that effect) or (ii) any other
Person (including the Master Servicers and the Special Servicer) upon receipt by
the Trustee and the applicable Master Servicer of an Opinion of Counsel, which
shall be at no expense to the Trustee, the Master Servicers or the Trust Fund,
to the effect that the taking of any action in respect of any REO Property by
such Person, subject to any conditions therein specified, that is otherwise
herein contemplated to be taken by an Independent Contractor will not cause such
REO Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property.
"Initial Purchaser": X.X. Xxxxxx Securities Inc.
"Initial Sub-Servicer": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement with any Master Servicer as of the Closing
Date, the Sub-Servicer under any such Sub-Servicing Agreement.
"Initial Sub-Servicing Agreement": Any Sub-Servicing Agreement in
effect as of the Closing Date.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Act.
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor or any tenants or ground lessors, in either case, in accordance with
the Servicing Standards (and in the case of the Houston Galleria Loan, the
Houston Galleria Trust Subordinate Companion Loan or any AB Mortgage Loan, to
the extent any portion of such proceeds are received by the Trustee in
connection with such AB Mortgage Loan or the Houston Galleria Loan, the Houston
Galleria Trust Subordinate Companion Loan, as applicable, pursuant to the
allocations set forth in the related Intercreditor Agreement).
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Intech One & Two AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 37.
"Intech One & Two Companion Loan": That certain loan evidenced by a
promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the Intech One & Two AB Mortgage Loan.
"Intech One & Two Intercreditor Agreement": That certain
Intercreditor Agreement Among Noteholders, dated as of December 2, 2005, by and
between Nomura Credit & Capital, Inc., as the B Note Holder, and Nomura Credit &
Capital, Inc., as the A Note Holder.
"Intercreditor Agreements": Each of the Houston Galleria
Intercreditor Agreement, the Intech One & Two Intercreditor Agreement, the
Lincoln Park Town Homes Intercreditor Agreement, the Brookdale Office Portfolio
Intercreditor Agreement, the Jordan Creek Intercreditor Agreement and the 30
West Monroe Intercreditor Agreement.
"Interest Accrual Period": With respect to any Class of Regular
Certificates (other than the Class A-2FL Certificates), the Class HG
Certificates, the Class A-2FL Regular Interest or the Uncertificated Lower-Tier
Interests and any Distribution Date, the period beginning on the first day of
the calendar month preceding the calendar month in which the related
Distribution Date occurs and ending on the last day of the calendar month
preceding the calendar month in which such Distribution Date occurs, calculated
(other than with respect to the Class HG Certificates) assuming that each month
has 30 days and each year has 360 days (and with respect to the Class HG
Certificates, calculated assuming that each month has the actual number of days
in such Interest Accrual Period and each year has 360 days). With respect to the
Class A-2FL Certificates and any Distribution Date, the Interest Accrual Period
will be the period from and including the Distribution Date in the month
preceding the month in which the related Distribution Date occurs (or in the
case of the first Distribution Date, the Closing Date) to, but excluding the
related Distribution Date, calculated assuming that each month has the actual
number of days in such Interest Accrual Period and each year has 360 days,
provided that if the Pass-Through Rate for the Class A-2FL Certificates converts
to a fixed rate, interest will be calculated assuming each month has 30 days and
each year has 360 days.
"Interest Distribution Amount": With respect to any Class of Regular
Certificates (other than the Class A-2FL Certificates) or Class HG Certificates
and the Class A-2FL Regular Interest for any Distribution Date, an amount equal
to the sum of the Distributable Certificate Interest and the Class Unpaid
Interest Shortfall with respect to such Class of Regular Certificates, Class HG
Certificates, or the Class A-2FL Regular Interest, as applicable, for such
Distribution Date.
"Interest Reserve Account": The trust account or subaccount of the
Distribution Account created and maintained by the Trustee pursuant to Section
3.25 in the name of "LaSalle Bank National Association, as Trustee, in trust for
the registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 0000-XXX0, Xxxxxxxx
Xxxxxxx Account," into which the amounts set forth in Section 3.25 shall be
deposited directly and which must be an Eligible Account or subaccount of an
Eligible Account.
"Interest Reserve Loan": Each Actual/360 Mortgage Loan.
"Interested Person": The Depositor, each Master Servicer, the
Special Servicer, any Independent Contractor engaged by the Special Servicer,
any Holder of a Certificate, each Companion Holder (but only with respect to the
related AB Mortgage Loan or the Houston Galleria Loan, as applicable) or any
Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"IXIS": IXIS Real Estate Capital Inc., a New York corporation, or
its successor in interest.
"Jordan Creek AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 5.
"Jordan Creek Companion Loan": That certain loan evidenced by a
promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the Jordan Creek AB Mortgage Loan.
"Jordan Creek Intercreditor Agreement": That certain Intercreditor
Agreement Among Noteholders, dated as of May 3, 2005, by and between AIB Debt
Management Limited, as the B Note Holder, and Eurohypo AG, New York Branch, as
the A Note Holder.
"Jordan Creek Loan Pair": Collectively, the Jordan Creek AB
Mortgage Loan and the Jordan Creek Companion Loan.
"JPMorgan": JPMorgan Chase Bank, National Association, a banking
association organized under the laws of the United States, or its successor in
interest.
"Late Collections": With respect to any Mortgage Loan or Companion
Loan, all amounts received thereon prior to the related Determination Date,
whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds
or otherwise, which represent late payments or collections of principal or
interest due in respect of such Mortgage Loan or Companion Loan (without regard
to any acceleration of amounts due thereunder by reason of default) on a Due
Date prior to the immediately preceding Determination Date and not previously
recovered. With respect to any REO Loan, all amounts received in connection with
the related REO Property prior to the related Determination Date, whether as
Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of principal or interest due or
deemed due in respect of such REO Loan or the predecessor Mortgage Loan or
Companion Loan (without regard to any acceleration of amounts due under the
predecessor Mortgage Loan or Companion Loan by reason of default) on a Due Date
prior to the immediately preceding Determination Date and not previously
recovered. The term "Late Collections" shall specifically exclude Penalty
Charges.
"LIBOR": With respect to the Class A-2FL Certificates and each
Interest Accrual Period, 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 related LIBOR
Determination Date. If such rate does not appear on Dow Xxxxx Market Service
Page 3750, the rate for that Interest Accrual Period shall be determined on the
basis of the rates at which deposits in U.S. Dollars are offered by any four
major reference banks in the London interbank market selected by the Trustee to
provide such bank's offered quotation of such rates at approximately 11:00 a.m.,
London time, on the related LIBOR Determination Date to prime banks in the
London interbank market for a period of one month, commencing on the first day
of such Interest Accrual Period and in an amount that is representative for a
single such transaction in the relevant market at the relevant time. The Trustee
shall request the principal London office of any four major reference banks in
the London interbank market selected by the Trustee to provide a quotation of
such rates, as offered by each such bank. If at least two such quotations are
provided, the rate for that Interest Accrual Period shall be the arithmetic mean
of the quotations. If fewer than two quotations are provided as requested, the
rate for that Interest Accrual Period shall be the arithmetic mean of the rates
quoted by major banks in New York City selected by the Trustee, at approximately
11:00 a.m., New York City time, on the LIBOR Determination Date with respect to
such Mortgage Loan Accrual Period for loans in U.S. Dollars to leading European
banks for a period equal to one month, commencing on the LIBOR Determination
Date with respect to such Interest Accrual Period and in an amount that is
representative for a single such transaction in the relevant market at the
relevant time. The Trustee shall determine LIBOR for each Interest Accrual
Period and the determination of LIBOR by Trustee shall be binding absent
manifest error.
"LIBOR Determination Date": (i) With respect to the initial Interest
Accrual Period, the date that is two LIBOR Business Days prior to the Closing
Date, and (ii) with respect to each Interest Accrual Period thereafter, the date
that is two LIBOR Business Days prior to the beginning of the related Interest
Accrual Period.
"LIBOR Business Day": Any day on which commercial banks are open for
international business (including dealings in U.S. Dollar deposits) in London,
England and New York, New York.
"Lincoln Park Town Homes AB Mortgage Loan": That certain Mortgage
Loan identified on the Mortgage Loan Schedule as loan number 154.
"Lincoln Park Town Homes Companion Loan": That certain loan
evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the Lincoln Park Town Homes AB
Mortgage Loan.
"Lincoln Park Town Homes Intercreditor Agreement": That certain
Intercreditor Agreement Among Noteholders, dated as of October 14, 2005, by and
between CBA-Mezzanine Capital Finance, LLC, as the B Note Holder, and Nomura
Credit & Capital, Inc., as the A Note Holder.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 6
of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Controlling Class Option Holder or the Special Servicer
pursuant to Section 3.18(b); or the Houston Galleria Controlling Holder pursuant
to Section 3.18(f) or Section 3.18(g); (v) such Mortgage Loan is purchased by
the Special Servicer, the applicable Master Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates pursuant to
Section 9.01 or acquired by the Sole Certificateholder in exchange for its
Certificates pursuant to Section 9.01; or (vi) such Mortgage Loan is purchased
by (a) the applicable Companion Holder pursuant to or as contemplated by Section
3.18(d) or (b) a mezzanine lender pursuant to the related mezzanine
intercreditor agreement. With respect to any REO Property (and the related REO
Loan), any of the following events: (i) a Final Recovery Determination is made
with respect to such REO Property; (ii) such REO Property is purchased by the
applicable Master Servicer, the Special Servicer, the Holders of the Controlling
Class or the Holders of the Class LR Certificates pursuant to Section 9.01; or
(iii) such REO Property is purchased by (a) the applicable Companion Holder
pursuant to or as contemplated by Section 3.18(d) or (b) a mezzanine lender
pursuant to the related mezzanine intercreditor agreement.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Special Servicer in connection
with a liquidation of any Specially Serviced Mortgage Loan or REO Property
pursuant to Section 3.18 (including, without limitation, legal fees and
expenses, committee or referee fees and, if applicable, brokerage commissions
and conveyance taxes).
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan or REO Property as to which the
Special Servicer receives a full or discounted payoff (or an unscheduled partial
payment to the extent such prepayment is required by the Special Servicer as a
condition to a workout) with respect thereto from the related Mortgagor or any
Liquidation Proceeds or Insurance and Condemnation Proceeds with respect to the
related Mortgage Loan, or REO Property (in any case, other than amounts for
which a Workout Fee has been paid, or will be payable), equal to the product of
the Liquidation Fee Rate and the proceeds of such full or discounted payoff or
other unscheduled partial payment or the Liquidation Proceeds or Insurance and
Condemnation Proceeds (net of the related costs and expenses associated with the
related liquidation) related to such liquidated Specially Serviced Mortgage Loan
or REO Property, as the case may be; provided, however, that no Liquidation Fee
shall be payable with respect to any event described in (1) clause (iii)(A) of
the definition of "Liquidation Proceeds" if such purchase occurs within the
first 90 days after the Special Servicer's initial determination of the fair
value of such Specially Serviced Mortgage Loan, (2) clause (iv) of the
definition of "Liquidation Proceeds" if such repurchase occurs within the time
parameters (including any applicable extension period) set forth in this
Agreement and in the related Mortgage Loan Purchase Agreement or, if such
repurchase occurs after such time period, the Mortgage Loan Seller was acting in
good faith to resolve such breach or defect or (3) clause (v) and clause (vi) of
the definition of "Liquidation Proceeds," (except that a Liquidation Fee will be
payable (i) with respect to any purchase by a mezzanine lender or the holder of
a Companion Loan if such purchase does not occur within 90 days following the
date the related Mortgage Loan becomes subject to such purchase option under the
related Intercreditor Agreement or (ii) with respect to the Brookdale Office
Portfolio AB Mortgage Loan, at any time if such purchase occurs following the
existence of a Control Appraisal Event (provided the immediately preceding
clause (i) is not then applicable) with respect to the Brookdale Office
Portfolio Subordinate Companion Loan).
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, a rate equal to 1.00%.
"Liquidation Proceeds": Cash amounts received by or paid to any
Master Servicer or the Special Servicer in connection with: (i) the liquidation
(including a payment in full) of a Mortgaged Property or other collateral
constituting security for a Defaulted Mortgage Loan through a Trustee's sale,
foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof
required to be released to the related Mortgagor in accordance with applicable
law and the terms and conditions of the related Mortgage Note and Mortgage; (ii)
the realization upon any deficiency judgment obtained against a Mortgagor; (iii)
(A) the purchase of a Defaulted Mortgage Loan (including the Houston Galleria
Trust Subordinate Companion Loan) by the Majority Controlling Class
Certificateholder, the Houston Galleria Controlling Holder, the Special Servicer
or any Master Servicer or any of their assignees pursuant to Section 3.18(a) or
Section 3.18(f), as applicable or (B) any other sale thereof pursuant to Section
3.18(c), Section 3.18(e) or Section 3.18(f); (iv) the repurchase of a Mortgage
Loan by the applicable Mortgage Loan Seller pursuant to Section 6 of the related
Mortgage Loan Purchase Agreement; (v) the purchase of a Mortgage Loan or REO
Property by the Holders of the Controlling Class, the Special Servicer, any
Master Servicer or the Holders of the Class LR Certificates pursuant to Section
9.01 or; (vi) the purchase of a Mortgage Loan or an REO Property by (a) the
Companion Holder pursuant to Section 3.18(d) or (b) any other mezzanine lender
of the related Mortgage Loan or REO Loan.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 1 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 1, and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 1; provided, that
the Loan Group 1 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 1 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
1 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 1 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 1 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 2 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 2 Principal Distribution Amount" had the Loan Group 2
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 2 Principal Distribution Amount (prior to giving
effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 2
Principal Distribution Amount") for that Distribution Date (provided further,
(I) that, with respect to the amounts identified in clauses (i) and (ii) above,
if any of such amounts reimbursed from principal collections on the Group 1
Mortgage Loans are subsequently recovered on the related Mortgage Loan, subject
to the application of any recovery to increase the Loan Group 2 Principal
Distribution Amount as required under clause (II) of the definition of "Loan
Group 2 Principal Distribution Amount"), such recovery will be applied to
increase the Loan Group 1 Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs; and (II) that in the
case of clause (iii) above, if any of such amounts reimbursed from principal
collections on the Loan Group 2 Mortgage Loans are subsequently recovered on the
related Mortgage Loan, such recovery will first be applied to increase the Loan
Group 1 Principal Distribution Amount up to such amounts and then to increase
the Loan Group 2 Principal Distribution Amount).
"Loan Group 1 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 1
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1, Class A-2FL, Class A-2, Class A-3, Class
A-4 and Class A-SB Certificates, exceeds (2) the aggregate amount distributed in
respect of principal on the Class A-1, Class A-2FL, Class A-2, Class A-3, Class
A-4 and Class A-SB Certificates on the prior Distribution Date. There will be no
Loan Group 1 Principal Shortfall on the first Distribution Date.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 2 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 2 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 2; provided, that
the Loan Group 2 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 2 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
2 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 2 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 2 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 1 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 1 Principal Distribution Amount" had the Loan Group 1
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 1 Principal Distribution Amount (prior to giving
effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 1
Principal Distribution Amount") for that Distribution Date (provided further,
(I) that, with respect to the amounts identified in clauses (i) and (ii) above,
if any of such amounts reimbursed from principal collections on the Group 2
Mortgage Loans are subsequently recovered on the related Mortgage Loan, subject
to the application of any recovery to increase the Loan Group 1 Principal
Distribution Amount as required under clause (II) of the definition of "Loan
Group 1 Principal Distribution Amount", such recovery will be applied to
increase the Loan Group 2 Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs; and (II) that in the
case of clause (iii) above, if any of such amounts reimbursed from principal
collections on the Loan Group 1 Mortgage Loans are subsequently recovered on the
related Mortgage Loan, such recovery will first be applied to increase the Loan
Group 2 Principal Distribution Amount up to such amounts and then to increase
the Loan Group 1 Principal Distribution Amount).
"Loan Group 2 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 2
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1A Certificates, exceeds (2) the aggregate
amount distributed in respect of principal on the Class A-1A Certificates on the
prior Distribution Date. There will be no Loan Group 2 Principal Shortfall on
the first Distribution Date.
"Loan Pair": Collectively, a Companion Loan and the related AB
Mortgage Loan or the Houston Galleria Whole Loan, as applicable.
"Lower-Tier Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Trustee pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "LaSalle
Bank National Association, as Trustee, in trust for the registered Holders of
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 0000-XXX0, Xxxxx-Xxxx Distribution Account".
Any such account, accounts or sub-accounts shall be an Eligible Account.
"Lower-Tier HG Distribution Amount": As defined in Section 4.01(b).
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-Tier Principal Amount of such Class
as specified in the Preliminary Statement hereto, and (ii) as of any date of
determination after the first Distribution Date, an amount equal to the
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii), and in the case of the Class LA-1-1, Class
LA-1-2, Class LA-1-3, Class LA-1-4, Class LA-1-5, Class LA-1A-1, Class LA-1A-2,
Class LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class
LA-1A-8, Class LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class
LA-1A-13, Class LA-1A-14, Class LA-1A-15, Class LA-2FL-1, Class LA-2FL-2, Class
LA-2FL-3, Class LA-2-1, Class LA-2-2, Class LA-3-1, Class LA-3-2, Class LA-4-1,
Class LA-4-2, Class LA-4-3, Class LA-4-4, Class LA-4-5, Class LA-4-6, Class
LA-4-7, Class LA-SB-1, Class LA-SB-2, Class LA-SB-3, Class LA-SB-4, Class
LA-SB-5, Class LA-SB-6, Class LG-1, Class LG-2, Class LG-3, Class LH-1, Class
LH-2, Class LH-3, Class LJ-1, Class LJ-2, Class LJ-3, Class LK-1, Class LK-2,
Class LK-3, Class LL-1, Class LL-2, Class LM-1, Class LM-2, Class LQ-1 and Class
LQ-2 Uncertificated Interests, as set forth in Section 4.01(b)).
"Lower-Tier Regular Distribution Amount": As defined in Section
4.01(b).
"Lower-Tier REMIC": One of two separate REMICs comprising a portion
of the Trust Fund, the assets of which consist of the Mortgage Loans (exclusive
of Excess Interest), any REO Property with respect thereto (or an allocable
portion thereof, in the case of the AB Mortgage Loans or the Houston Galleria
Loan), such amounts as shall from time to time be held in the Certificate
Account (other than with respect to the Companion Loans), the REO Account, if
any, the Interest Reserve Account, the Gain-on-Sale Reserve Account and the
Lower-Tier Distribution Account, and all other property included in the Trust
Fund that is not in the Upper-Tier REMIC or the Grantor Trust.
"LTV Ratio": With respect to any Mortgage Loan, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the scheduled principal balance of such Mortgage Loan as of such date (assuming
no defaults or prepayments on such Mortgage Loan prior to that date), and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"MAI": Member of the Appraisal Institute.
"Majority Controlling Class Certificateholder": As of any date, the
Controlling Class Certificateholder owning a majority of the Percentage
Interests in the Controlling Class.
"Majority Mortgage Loans": All Mortgage Loans except the Houston
Galleria Trust Subordinate Companion Loan.
"Master Servicer": With respect to (a) the Group A Mortgage Loans
and any related Companion Loans and any related REO Properties, and any matters
relating to the foregoing, Master Servicer No. 1, and (b) the Group B Mortgage
Loans and any related Companion Loans and any related REO Properties, and any
matters relating to the foregoing, Master Servicer No. 2.
"Master Servicer No. 1": Midland Loan Services, Inc., in its
capacity as master servicer with respect to the Group A Mortgage Loans and any
related Companion Loans and any related REO Properties hereunder, or any
successor master servicer appointed as provided herein with respect to the Group
A Mortgage Loans, any related Companion Loans and any related REO Properties.
"Master Servicer No. 2": GMAC Commercial Mortgage Corporation, in
its capacity as master servicer with respect to the Group B Mortgage Loans and
any related Companion Loans and any related REO Properties hereunder, or any
successor master servicer appointed as provided herein with respect to the Group
B Mortgage Loans, any related Companion Loans and any related REO Properties.
"Maturity Date": With respect to any Mortgage Loan or Companion Loan
as of any date of determination, the date on which the last payment of principal
is due and payable under the related Mortgage Note, after taking into account
all Principal Prepayments received prior to such date of determination, but
without giving effect to (i) any acceleration of the principal of such Mortgage
Loan or Companion Loan by reason of default thereunder or (ii) any grace period
permitted by the related Mortgage Note.
"Monthly Payment": With respect to any Mortgage Loan or Companion
Loan, the scheduled monthly payment of principal and/or interest (other than
Excess Interest) on such Mortgage Loan or Companion Loan, including any Balloon
Payment, which is payable (as the terms of the applicable Mortgage Loan or
Companion Loan may be changed or modified in connection with a bankruptcy or
similar proceedings involving the related Mortgagor or by reason of a
modification, extension, waiver or amendment granted or agreed to pursuant to
the terms hereof) by a Mortgagor from time to time under the related Mortgage
Note and applicable law, without regard to any acceleration of principal of such
Mortgage Loan or Companion Loan by reason of default thereunder and without
respect to any Excess Interest.
"Moody's": Xxxxx'x Investors Service, Inc. If neither Moody's nor
any successor remains in existence, "Moody's" shall be deemed to refer to such
other nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Master Servicers and the Special Servicer, and specific ratings of
Moody's herein referenced shall be deemed to refer to the equivalent ratings of
the party so designated.
"Mortgage": With respect to any Mortgage Loan or Companion Loan, the
mortgage, deed of trust or other instrument securing a Mortgage Note and
creating a lien on the fee and/or leasehold interest in the related Mortgaged
Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
of any Due Date that has been modified to reduce the rate at which interest is
paid currently below the Mortgage Rate and capitalize the amount of such
interest reduction, the excess, if any, of (a) interest accrued on the Stated
Principal Balance thereof during the one-month interest accrual period set forth
in the related Mortgage Note at the related Mortgage Rate over (b) the interest
portion of the related Monthly Payment, as so modified or reduced, or, if
applicable, Assumed Scheduled Payment due on such Due Date.
"Mortgage File": With respect to each Mortgage Loan and Companion
Loan, if applicable, but subject to Section 2.01, collectively the following
documents:
(i) the original executed Mortgage Note bearing, or
accompanied by, all prior and intervening endorsements, assignments
or allonges showing a complete chain of endorsement or assignment
from the originator of the Mortgage Loan to the most recent
endorsee, and further endorsed (at the direction of the Depositor
given pursuant to the applicable Mortgage Loan Purchase Agreement),
on its face or by allonge attached thereto, without recourse,
representation or warranty, express or implied to the order of the
Trustee in the following form: "Pay to the order of LaSalle Bank
National Association, as trustee for the registered holders of X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP5" or in blank,
provided that the requirements of this clause (i) will be satisfied
by delivery of a signed lost note affidavit and indemnity properly
assigned or endorsed to the Trustee as described above, with a copy
of the Mortgage Note attached to it;
(ii) the original Mortgage (or a certified or other copy
thereof from the applicable recording office) and originals (or
certified or other copies from the applicable recording office) of
any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most
recent mortgagee of record, in each case with evidence of recording
indicated thereon (except for recording information not yet
available if the Mortgage or an assignment thereof has not been
returned from the applicable recording office);
(iii) an original assignment of the Mortgage, in complete and
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the most recent assignee
of record thereof prior to the Trustee, or if none, by the
originator to "LaSalle Bank National Association, as trustee for the
registered holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2005-LDP5" or in blank;
(iv) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record, in each case with
evidence of recording thereon (except for recording information not
yet available if the Assignment of Leases or an assignment thereof
has not been returned from the applicable recording office);
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage and to the
extent not already assigned pursuant to preceding clause (iii)), in
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the applicable assignee of
record to "LaSalle Bank National Association, as Trustee for the
registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2005-LDP5" or in blank;
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the applicable Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in complete
form, executed by the applicable Mortgage Loan Seller to "LaSalle
Bank National Association, as Trustee for the registered holders of
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP5" or in blank;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with
evidence of recording thereon, where appropriate, in those instances
where the terms or provisions of the Mortgage, Mortgage Note or any
related security document have been consolidated or modified or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgagor's fee or
leasehold interest in the Mortgaged Property, or if the policy has
not yet been issued, an original or copy of a "marked-up" written
commitment (marked as binding and in all cases countersigned by the
title insurer or its authorized agent) or the pro forma or specimen
title insurance policy (accepted or approved in writing by the title
insurer or its authorized agent) or an agreement to provide the same
pursuant to lender's escrow trust instructions executed by an
authorized representative of the title insurance company in
connection with the related Mortgage Loan;
(x) the original or copy of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan and any intervening
assignments;
(xi) all UCC Financing Statements, assignments and
continuation statements or copies thereof, as filed or recorded, or
in form that is complete and suitable for filing or recording, as
appropriate, or other evidence of filing or recording sufficient to
perfect (and maintain the perfection of) the security interest held
by the originator of the Mortgage Loan (and each assignee of record
prior to the Trustee) in and to the personalty of the Mortgagor at
the Mortgaged Property (in each case with evidence of filing or
recording thereon, with the exception of filing or recording
information not yet available because the UCC Financing Statement,
assignment or continuation statement, as the case may be, has not
yet been returned from the applicable filing or recording office),
and to transfer such UCC Financing Statements to the Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loans with Additional
Debt, a co-lender agreement, a subordination agreement or other
intercreditor agreement, pursuant to which such Additional Debt will
be subordinated to such Mortgage Loan as set forth in such
intercreditor agreement;
(xiv) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
(xv) with respect to any Mortgage Loan secured by a ground
lease, the related ground lease or a copy thereof and any related
ground lessor estoppels;
(xvi) a copy of any letter of credit securing such Mortgage
Loan and, within sixty (60) days of the Closing Date or such earlier
date as required by the issuer of the letter of credit, a copy of
the appropriate transfer or assignment documents (which may be in
the form of an amendment) for such letter of credit;
(xvii) a copy of any Environmental Indemnity Agreement,
together with a copy of any environmental insurance policy;
(xviii) a copy of any loan agreement(s);
(xix) a copy of any escrow agreement(s);
(xx) a copy of any property management agreement(s);
(xxi) a copy of any franchise agreements and comfort letters
related thereto;
(xxii) a copy of any lock-box or cash management agreement(s);
(xxiii) a list related to such Mortgage Loan indicating the
related Mortgage Loan documents included in the related Mortgage
File (the "Mortgage Loan Checklist"); and
(xxiv) with respect to each Mortgage Loan that has one or more
Companion Loan(s), the related Intercreditor Agreement and a copy of
each Mortgage Note relating to such Companion Loan(s), rather than
the original;
provided, however, that (a) whenever the term "Mortgage File" is used to refer
to documents held by the Trustee, or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually received by the Trustee or a Custodian
appointed thereby, (b) if there exists with respect to any Crossed Group only
one original or certified copy of any document referred to in the definition of
"Mortgage File" covering all of the Mortgage Loans in such Crossed Group, then
the inclusion of such original or certified copy in the Mortgage File for any of
the Mortgage Loans constituting such Crossed Group shall be deemed the inclusion
of such original or certified copy in the Mortgage File for each such Mortgage
Loan, (c) to the extent that this Agreement refers to a "Mortgage File" for any
Companion Loan, such "Mortgage File" shall be construed to mean the Mortgage
File for the related Mortgage Loan (except that references to the Mortgage Note
otherwise described above shall be construed to instead refer to a photocopy of
such Mortgage Note) and (d) the execution and/or recordation of any assignment
of Mortgage, any separate assignment of Assignment of Leases and any assignment
of any UCC Financing Statement in the name of the Trustee shall not be construed
to limit the beneficial interest of the related Companion Holder(s) in such
instrument and the benefits intended to be provided to them by such instrument,
it being acknowledged that (i) the Trustee shall hold such record title for the
benefit of the Trust as the holder of the related Mortgage Loan and the related
Companion Holder(s) collectively and (ii) any efforts undertaken by the Trustee,
any Master Servicer, or the Special Servicer on its behalf to enforce or obtain
the benefits of such instrument shall be construed to be so undertaken by
Trustee, the applicable Master Servicer or the Special Servicer for the benefit
of the Trust as the holder of the applicable Mortgage Loan and the related
Companion Holder(s) collectively.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other documents contained in the related Mortgage File and
any related agreements. Except where specifically noted, as used in this
Agreement, the term "Mortgage Loan" shall include the Houston Galleria Trust
Subordinate Companion Loan, but shall not include any other Companion Loan.
"Mortgage Loan Checklist": As defined in the definition of "Mortgage
File."
"Mortgage Loan Purchase Agreement": Each of the agreements between
the Depositor and each Mortgage Loan Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan identification number and loan servicing number
(as specified in Annex A-1 to the Prospectus);
(ii) the Mortgagor's name;
(iii) the street address (including city, county, state and
zip code) and name of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining
term to stated maturity and (c) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(xi) the applicable Servicing Fee Rate;
(xii) whether the Mortgage Loan is a 30/360 Mortgage Loan or
an Actual/360 Mortgage Loan;
(xiii) the Anticipated Repayment Date, if applicable;
(xiv) the Revised Rate of such Mortgage Loan, if any;
(xv) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;
(xvi) identifying any Mortgage Loans with which such Mortgage
Loan is cross-defaulted or cross-collateralized;
(xvii) the originator of such Mortgage Loan and the Mortgage
Loan Seller;
(xviii) whether such Mortgage Loan has a guarantor;
(xix) whether such Mortgage Loan is secured by a letter of
credit;
(xx) amount of any reserve or escrowed funds that were
deposited at origination and any ongoing periodic deposit
requirements;
(xxi) number of grace days;
(xxii) whether a cash management agreement or lock-box
agreement is in place;
(xxiii) the general property type of the related Mortgaged
Property;
(xxiv) whether the Mortgage Loan permits defeasance;
(xxv) the interest accrual period; and
(xxvi) the applicable Loan Group to which the Mortgage Loan
belongs.
Such Mortgage Loan Schedule shall also set forth the aggregate of
the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Each of: (1) JPMorgan, or its successor in
interest, (2) NCCI, or its successor in interest, (3) Eurohypo, or its successor
in interest, (4) PNC Bank, or its successor in interest, (5) IXIS, or its
successor in interest and (6) AIG Mortgage Capital, LLC, or its successor in
interest (and Some 1, LLC, or its successor in interest).
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, together
with any rider, addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan or Companion
Loan on or prior to its Maturity Date, the annual rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan or
Companion Loan from time to time in accordance with the related Mortgage Note
and applicable law, exclusive of the Excess Rate; or (ii) any Mortgage Loan or
Companion Loan after its Maturity Date, the annual rate described in clause (i)
above determined without regard to the passage of such Maturity Date.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"NCCI": Nomura Credit & Capital, Inc., a Delaware corporation, or
its successor in interest.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date and (i) with respect to the Majority Mortgage Loans, 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 Majority
Mortgage Loans during the related Due Period, exceeds (b) the aggregate amount
deposited by the applicable Master Servicer in its Certificate Account for such
Distribution Date pursuant to Section 3.19 in connection with such Prepayment
Interest Shortfalls; and (ii) with respect to the Houston Galleria Trust
Subordinate Companion Loan, 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 Houston Galleria Trust Subordinate Companion Loan
during the related Due Period, exceeds (b) the aggregate amount deposited by the
applicable Master Servicer in its Certificate Account for such Distribution Date
pursuant to Section 3.19 in connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to each Certificate Account,
the Servicing Accounts or the REO Account for any period from any Distribution
Date to the immediately succeeding P&I Advance Date, the amount, if any, by
which the aggregate of all interest and other income realized during such period
on funds relating to the Trust Fund held in such account, exceeds the aggregate
of all losses, if any, incurred during such period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to each Certificate Account, the
Servicing Accounts or the REO Account for any period from any Distribution Date
to the immediately succeeding P&I Advance Date, the amount by which the
aggregate of all losses, if any, incurred during such period in connection with
the investment of funds relating to the Trust Fund held in such account in
accordance with Section 3.06, exceeds the aggregate of all interest and other
income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan
as of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect, minus the Administrative Cost Rate; provided, that for
purposes of calculating Pass-Through Rates, the Net Mortgage Rate for any
Mortgage Loan will be determined without regard to any modification, waiver or
amendment of the terms of such Mortgage Loan, whether agreed to by the
applicable Master Servicer or the Special Servicer or resulting from a
bankruptcy, insolvency or similar proceeding involving the Mortgagor; provided
further, that if any Mortgage Loan does not accrue interest on the basis of a
360-day year consisting of twelve 30-day months, then, solely for purposes of
calculating Pass-Through Rates, the Net Mortgage Rate of such Mortgage Loan for
any one-month period preceding a related Due Date will be the annualized rate at
which interest would have to accrue in respect of such Mortgage Loan on the
basis of a 360-day year consisting of twelve 30-day months in order to produce
the aggregate amount of interest actually accrued (exclusive of Default Interest
or Excess Interest) in respect of such Mortgage Loan during such one-month
period at the related Net Mortgage Rate; provided further, that, with respect to
each Interest Reserve Loan, the Net Mortgage Rate for the one month period (A)
preceding the Due Dates that occur in January and February in any year which is
not a leap year or preceding the Due Date that occurs in February in any year
which is a leap year, and (B) preceding the Due Date in March, will be the per
annum rate stated in the related Mortgage Note less the related Administrative
Cost Rate. With respect to any REO Loan, the Net Mortgage Rate shall be
calculated as described above, determined as if the predecessor Mortgage Loan
had remained outstanding.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net Operating Income will be calculated in
accordance with the standard definition of "Net Operating Income" approved from
time to time endorsed and put forth by the CMSA.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance; provided, that Workout-Delayed Reimbursement
Amounts shall constitute a Nonrecoverable Advance only when the Person making
such determination in accordance with the procedures specified in the definition
of Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, as
applicable, and taking into account factors such as all other outstanding
Advances, either (a) has determined in accordance with the Servicing Standards
or the standards applicable to the Trustee as set forth in the definitions of
"Nonrecoverable P&I Advance" and "Nonrecoverable Servicing Advance" that such
Workout-Delayed Reimbursement Amounts would not ultimately be recoverable from
Late Collections, Insurance Proceeds or Liquidation Proceeds, or any other
recovery on or in respect of the related Mortgage Loan or REO Loan, or (b) has
determined in accordance with the Servicing Standards or such other applicable
standard that such Workout-Delayed Reimbursement Amounts, along with any other
Workout-Delayed Reimbursement Amounts and Nonrecoverable Advances, would not
ultimately be recovered from aggregate principal collections in respect of the
pool of the Mortgage Loans or REO Loans.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
reasonable judgment of the applicable Master Servicer or the Trustee, as
applicable, will not be ultimately recoverable, together with any accrued and
unpaid interest thereon at the Reimbursement Rate, from Late Collections or any
other recovery on or in respect of such Mortgage Loan or REO Loan; provided,
however, that the Special Servicer may, at its option, in consultation with the
Directing Certificateholder, make a determination in accordance with the
Servicing Standards, that any P&I Advance previously made or proposed to be made
is a Nonrecoverable P&I Advance and shall deliver to the applicable Master
Servicer and the Trustee (and with respect to the Houston Galleria Loan, to any
Other Servicer of the Houston Galleria Companion Loans) notice of such
determination. Any such determination shall be conclusive and binding on the
applicable Master Servicer and the Trustee, provided, however, the Special
Servicer shall have no such obligation to make an affirmative determination that
any P&I Advance is or would be recoverable, and in the absence of a
determination by the Special Servicer that such P&I Advance is a Nonrecoverable
P&I Advance, such decision shall remain with the applicable Master Servicer or
the Trustee, as applicable. In making such recoverability determination, the
applicable Master Servicer, Special Servicer or Trustee, as applicable, will be
entitled (a) to consider (among other things) (i) the obligations of the
Mortgagor under the terms of the related Mortgage Loan as it may have been
modified and (ii) the related Mortgaged Properties in their "as is" or then
current conditions and occupancies, as modified by such party's assumptions
(consistent with the Servicing Standards in the case of the applicable Master
Servicer and the Special Servicer or its good faith business judgment in the
case of the Trustee) regarding the possibility and effects of future adverse
change with respect to such Mortgaged Properties, (b) to estimate and consider
(among other things) future expenses (consistent with the Servicing Standards in
the case of the applicable Master Servicer and the Special Servicer or in its
good faith business judgment in the case of the Trustee) among other things and
the timing of recoveries and (c) to give due regard to the existence of any
Nonrecoverable Advances which, at the time of such consideration, the recovery
of which are being deferred or delayed by the Master Servicer, in light of the
fact that Related Proceeds are a source of recovery not only for the Advance
under consideration but also a potential source of recovery for such delayed or
deferred Advance. In addition, any Person, in considering whether a P&I Advance
is a Nonrecoverable Advance, will be entitled to give due regard to the
existence of any outstanding Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount with respect to other Mortgage Loans which, at the time of
such consideration, the reimbursement of which is being deferred or delayed by
the applicable Master Servicer or the Trustee because there is insufficient
principal available for such reimbursement, in light of the fact that proceeds
on the related Mortgage Loan are a source of reimbursement not only for the P&I
Advance under consideration, but also as a potential source of reimbursement of
such Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are
or may be being deferred or delayed. In addition, any such Person may update or
change its recoverability determinations at any time (but not reverse any other
Person's determination that an Advance is a Nonrecoverable Advance) and,
consistent with the Servicing Standards, in the case of the applicable Master
Servicer or its good faith business judgment in the case of the Trustee, may
obtain, promptly upon request, from the Special Servicer any reasonably required
analysis, Appraisals or market value estimates or other information in the
Special Servicer's possession for making a recoverability determination. Absent
bad faith, the applicable Master Servicer's, Special Servicer's or the Trustee's
determination as to the recoverability of any P&I Advance shall be conclusive
and binding on the Certificateholders. The determination by the applicable
Master Servicer, the Special Servicer or the Trustee, as the case may be, that
the applicable Master Servicer or the Trustee, as applicable, has made a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, or any updated or changed
recoverability determination, shall be evidenced by an Officer's Certificate
delivered by either the Special Servicer or the applicable Master Servicer to
the other and to the Trustee, the Directing Certificateholder, the Depositor, or
by the Trustee to the Depositor, the applicable Master Servicer, the Special
Servicer and the Directing Certificateholder. The Officer's Certificate shall
set forth such determination of nonrecoverability and the considerations of the
applicable Master Servicer, the Special Servicer or the Trustee, as applicable,
forming the basis of such determination (which shall be accompanied by, to the
extent available, income and expense statements, rent rolls, occupancy status,
property inspections and any other information used by the applicable Master
Servicer, the Special Servicer or the Trustee, as applicable, to make such
determination and shall include any existing Appraisal of the related Mortgage
Loan or Mortgaged Property). The Trustee shall be entitled to conclusively rely
on the applicable Master Servicer's determination that a P&I Advance is or would
be nonrecoverable and shall conclusively rely on and be bound by any
determination of the Special Servicer that a P&I Advance is or would be
nonrecoverable, and the applicable Master Servicer shall conclusively rely on
and be bound by the Special Servicer's determination that a P&I Advance is or
would be nonrecoverable. In the case of a cross-collateralized Mortgage Loan,
such recoverability determination shall take into account the
cross-collateralization of the related cross-collateralized Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property which,
in the reasonable judgment of the applicable Master Servicer, the Special
Servicer or the Trustee, as the case may be, will not be ultimately recoverable,
together with any accrued and unpaid interest thereon, at the Reimbursement
Rate, from Late Collections or any other recovery on or in respect of such
Mortgage Loan or REO Property. In making such recoverability determination, such
Person will be entitled to consider (among other things) the obligations of the
Mortgagor under the terms of the related Mortgage Loan as it may have been
modified, to consider (among other things) the related Mortgaged Properties in
their "as is" or then current conditions and occupancies, as modified by such
party's assumptions (consistent with the Servicing Standards in the case of the
applicable Master Servicer or the Special Servicer or in its good faith business
judgment in the case of the Trustee) regarding the possibility and effects of
future adverse change with respect to such Mortgaged Properties, to estimate and
consider (consistent with the Servicing Standards in the case of the applicable
Master Servicer or the Special Servicer or in its good faith business judgment
in the case of the Trustee) (among other things) future expenses and to estimate
and consider (among other things) the timing of recoveries. In addition, any
Person, in considering whether a Servicing Advance is a Nonrecoverable Servicing
Advance, will be entitled to give due regard to the existence of any
Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts with respect to
other Mortgage Loans which, at the time of such consideration, the recovery of
which are being deferred or delayed by the applicable Master Servicer, in light
of the fact that proceeds on the related Mortgage Loan are a source of recovery
not only for the Servicing Advance under consideration, but also as a potential
source of recovery of such Nonrecoverable Advance or Workout-Delayed
Reimbursement Amounts which are or may be being deferred or delayed. In
addition, any such Person may update or change its recoverability determinations
at any time (but not reverse any other Person's determination that an Advance is
a Nonrecoverable Advance) and, consistent with the Servicing Standards, in the
case of the applicable Master Servicer, may obtain, promptly upon request, from
the Special Servicer any reasonably required analysis, Appraisals or market
value estimates or other information in the Special Servicer's possession for
making a recoverability determination. The determination by the applicable
Master Servicer, the Special Servicer or the Trustee, as the case may be, that
it has made a Nonrecoverable Servicing Advance or that any proposed Servicing
Advance, if made, would constitute a Nonrecoverable Servicing Advance, or any
updated or changed recoverability determination, shall be evidenced by an
Officer's Certificate delivered by either of the Special Servicer or the
applicable Master Servicer to the other and to the Trustee, the Directing
Certificateholder and the Depositor, or by the Trustee to the Depositor, the
applicable Master Servicer, the Special Servicer and the Directing
Certificateholder; provided, however, that the Special Servicer may, at its
option, in consultation with the Directing Certificateholder, make a
determination in accordance with the Servicing Standards, that any Servicing
Advance previously made or proposed to be made is a Nonrecoverable Servicing
Advance and shall deliver to the applicable Master Servicer and the Trustee
notice of such determination. Any such determination shall be conclusive and
binding on the applicable Master Servicer, the Special Servicer and the Trustee;
provided, however, the Special Servicer shall have no such obligation to make an
affirmative determination that any Servicing Advance is or would be recoverable,
and in the absence of a determination by the Special Servicer that such Advance
is a Nonrecoverable Servicing Advance, such decision shall remain with the
applicable Master Servicer or the Trustee, as applicable. The Officer's
Certificate shall set forth such determination of nonrecoverability and the
considerations of the applicable Master Servicer, the Special Servicer or the
Trustee, as applicable, forming the basis of such determination (which shall be
accompanied by, to the extent available, such related income and expense
statements, rent rolls, occupancy status and property inspections, and shall
include an Appraisal of the related Mortgage Loan or Mortgaged Property). The
Special Servicer shall promptly furnish any party required to make Servicing
Advances hereunder with any information in its possession regarding the
Specially Serviced Mortgage Loans and REO Properties as such party required to
make Servicing Advances may reasonably request for purposes of making
recoverability determinations. The Trustee will be entitled to conclusively rely
on the applicable Master Servicer's determination that a Servicing Advance is or
would be nonrecoverable and shall conclusively rely on and be bound by any
determination of the Special Servicer that a Servicing Advance is or would be
nonrecoverable, and the applicable Master Servicer shall conclusively rely on
and be bound by the Special Servicer's determination that a Servicing Advance is
or would be nonrecoverable. In the case of a cross collateralized Mortgage Loan,
such recoverability determination shall take into account the cross
collateralization of the related cross collateralized Mortgage Loan.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X-1, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class Q, Class NR, Class HG-1, Class HG-2,
Class HG-3, Class HG-4, Class HG-5, Class HG-X, Class S, Class R or Class LR
Certificate.
"Non-Specially Serviced Mortgage Loan": Any Mortgage Loan or
Companion Loan that is not a Specially Serviced Mortgage Loan.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form W-8ECI (or successor
form) or (ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes. A Person
shall be treated as a Non-U.S. Person, (A) notwithstanding clause (i) of the
preceding sentence, if it is a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes) any interest in which is
owned, directly or indirectly, through one more partnerships, trusts or other
pass-through entities by a Non-U.S. Person or (B) if such Person is a U.S.
Person with respect to whom income from a Residual Certificate is attributable
to a foreign permanent establishment of fixed base, within the meaning of an
applicable income treaty, of such Person or any other U.S. Person.
"Notional Amount": In the case of the Class X-1 Certificates, the
Class X-1 Notional Amount. In the case of the Class X-2 Certificates, the Class
X-2 Notional Amount. In the case of the Class HG-X Certificates and the Class
LHG-X Uncertificated Interest, the Class HG-X Notional Amount. In the case of
each Component, the amount set forth in the applicable definition thereof.
"Offered Certificates": The Class A-1, Class A-2FL, Class A-2, Class
X-0, Xxxxx X-0, Class A-SB, Class A-1A, Class A-M, Class A-J, Class X-2, Class
B, Class C, Class D, Class E and Class F Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the applicable Master Servicer or the Special Servicer, as the case may be,
or a Responsible Officer of the Trustee, as the case may be.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the applicable Master
Servicer or the Special Servicer, acceptable in form and delivered to the
Trustee, except that any opinion of counsel relating to (a) the qualification of
the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC, (b) compliance with the
REMIC Provisions, (c) qualification of the Grantor Trust as a grantor trust
under subpart E, Part I of subchapter J of the Code for federal income tax
purposes or (d) the resignation of the applicable Master Servicer, the Special
Servicer or the Depositor pursuant to Section 6.04, must be an opinion of
counsel who is in fact Independent of the Depositor, the applicable Master
Servicer or the Special Servicer, as applicable.
"Option Holder": As defined in Section 3.18(a).
"Option Price": As defined in Section 3.18(a).
"Original Certificate Balance": With respect to any Class of
Certificates (other than the Class S, the Class X and the Residual Certificates)
and the Class A-2FL Regular Interest, the initial aggregate principal amount
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement.
"Original Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interest, the initial principal amount thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"Original Notional Amount": With respect to the Class X-1 Notional
Amount, Class X-2 Notional Amount and Class HG-X Notional Amount, the initial
Notional Amount thereof as of the Closing Date, as specified in the Preliminary
Statement.
"Other Pooling and Servicing Agreement": Any pooling and servicing
agreement with respect to a Regulation AB Companion Loan Securitization.
"Other Servicer": Any servicer under an Other Pooling and Servicing
Agreement.
"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.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the applicable Master Servicer or the Trustee, as applicable, pursuant to
Section 4.03 or Section 7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the Business Day prior to the P&I Advance Date.
"Pari Passu Loan": The Houston Galleria Loan.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the
Class A-2FL Pass-Through Rate, the Class A-2FL Regular Interest Pass-Through
Rate, the Class A-2 Pass-Through Rate, the Class A-3 Pass-Through Rate, the
Class A-4 Pass-Through Rate, the Class A-SB Pass-Through Rate, the Class A-1A
Pass-Through Rate, the Class A-M Pass-Through Rate, the Class A-J Pass-Through
Rate, the Class B Pass-Through Rate, the Class C Pass-Through Rate, the Class D
Pass-Through Rate, the Class E Pass-Through Rate, the Class F Pass-Through Rate,
the Class G Pass-Through Rate, the Class H Pass-Through Rate, the Class J
Pass-Through Rate, the Class K Pass-Through Rate, the Class L Pass-Through Rate,
the Class M Pass-Through Rate, the Class N Pass-Through Rate, the Class O
Pass-Through Rate, the Class P Pass-Through Rate, the Class Q Pass-Through Rate,
the Class NR Pass-Through Rate, the Class HG-1 Pass-Through Rate, the Class HG-2
Pass-Through Rate, the Class HG-3 Pass-Through Rate, the Class HG-4 Pass-Through
Rate, the Class HG-5 Pass-Through Rate, the Class HG-X Pass-Through Rate, the
Class X-1 Pass-Through Rate or the Class X-2 Pass-Through Rate.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan), any amounts actually collected thereon (or, in the case of a Mortgage
Loan (or successor REO Loan thereto) that is part of a Loan Pair, actually
collected on such Loan Pair and allocated and paid on such Mortgage Loan (or
successor REO Loan) in accordance with the related Intercreditor Agreement) that
represent late payment charges and/or Default Interest, other than a Yield
Maintenance Charge or prepayment premium, and other than any Excess Interest.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate or Class HG
Certificate, the percentage interest is equal to the Denomination of such
Certificate divided by the Original Certificate Balance or Original Notional
Amount, as applicable, of such Class of Certificates as of the Closing Date.
With respect to a Class S Certificate or a Residual Certificate, the percentage
interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Trustee,
if otherwise qualifying hereunder), regardless whether issued by the Depositor,
the applicable Master Servicer, the Special Servicer, the Trustee or any of
their respective Affiliates and having the required ratings, if any, provided
for in this definition and which shall not be subject to liquidation prior to
maturity:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America, Xxxxxx Xxx, Xxxxxxx Mac or any agency or instrumentality of
the United States of America, the obligations of which are backed by
the full faith and credit of the United States of America that
mature in one (1) year or less from the date of acquisition;
provided, that any obligation of, or guarantee by, Xxxxxx Mae or
Xxxxxxx Mac, other than an unsecured senior debt obligation of
Xxxxxx Mae or Xxxxxxx Mac, shall be a Permitted Investment only if
such investment would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating
Agency to any Certificate as evidenced in writing;
(ii) time deposits, unsecured certificates of deposit, or
bankers' acceptances that mature in one (1) year or less after the
date of issuance and are issued or held by any depository
institution or trust company (including the Trustee) incorporated or
organized under the laws of the United States of America or any
State thereof and subject to supervision and examination by federal
or state banking authorities, so long as the commercial paper or
other short- term debt obligations of such depository institution or
trust company are rated in the highest rating categories of each
Rating Agency or such other rating as would not result in the
downgrading, withdrawal or qualification of the then current rating
assigned by each Rating Agency to any Class of Certificates as
evidenced in writing;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a
remaining maturity of one year or less and where such repurchase
obligation has been entered into with a depository institution or
trust company (acting as principal) described in clause (ii) above;
(iv) debt obligations bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which mature in one (1) year
or less from the date of acquisition, which debt obligations are
rated in the highest rating categories of each Rating Agency or such
other rating as would not result in the downgrading, withdrawal or
qualification of the then current rating assigned by each Rating
Agency to any Class of Certificates as evidenced in writing;
provided, however, that securities issued by any particular
corporation will not be Permitted Investments to the extent that
investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held in the accounts
established hereunder to exceed 10% of the sum of the aggregate
principal balance and the aggregate principal amount of all
Permitted Investments in such accounts;
(v) commercial paper (including both non-interest bearing
discount obligations and interest bearing obligations) of any
corporation or other entity organized under the laws of the United
States or any state thereof payable on demand or on a specified date
maturing in one (1) year or less from the date of acquisition
thereof and which is rated in the highest rating category of each
Rating Agency (or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned by each Rating Agency to any Class of Certificates as
evidenced in writing);
(vi) money market funds, rated in the highest rating
categories of each Rating Agency; and
(vii) any other demand, money market or time deposit,
obligation, security or investment, (a) with respect to which each
Rating Agency shall have confirmed in writing that such investment
will not result in a downgrade, qualification or withdrawal of the
then current rating assigned by such Rating Agency to any Class of
Certificates as evidenced in writing and (b) which qualifies as a
"cash flow investment" pursuant to Section 860G(a)(6) of the Code;
provided, however, that in each case if the investment is rated by S&P, (a) it
shall not have an "r" highlighter affixed to its rating from S&P, (b) it shall
have a predetermined fixed dollar of principal due at maturity that cannot vary
or change and (c) any such investment that provides for a variable rate of
interest must have an interest rate that is tied to a single interest rate index
plus a fixed spread, if any, and move proportionately with such index; and
provided further, however, that no such instrument shall be a Permitted
Investment (a) if such instrument evidences principal and interest payments
derived from obligations underlying such instrument and the interest payments
with respect to such instrument provide a yield to maturity at the time of
acquisition of greater than 120% of the yield to maturity at par of such
underlying obligations or (b) if such instrument may be redeemed at a price
below the purchase price; and provided further, however, that no amount
beneficially owned by the Upper-Tier REMIC or the Lower-Tier REMIC (even if not
yet deposited in the Trust) may be invested in investments (other than money
market funds) treated as equity interests for federal income tax purposes,
unless the applicable Master Servicer receives an Opinion of Counsel, at its own
expense, to the effect that such investment will not adversely affect the status
of the Upper-Tier REMIC or the Lower-Tier REMIC. Permitted Investments that are
subject to prepayment or call may not be purchased at a price in excess of par.
"Permitted Transferee": Any Person who is a Qualified Institutional
Buyer.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"PNC Bank": PNC Bank, National Association, a national banking
association organized under the laws of the United States, or its successor in
interest.
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount and market discount, if any,
and the amortization premium, if any, on the Certificates for federal income tax
purposes; provided, it is assumed that each Mortgage Loan with an Anticipated
Repayment Date prepays on such date.
"Prepayment Interest Excess": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a prepayment in full or in part
during the related Due Period, which prepayment was applied to such Mortgage
Loan after the related Due Date and prior to the following Determination Date,
the amount of interest (net of the related Servicing Fees and any Excess
Interest), to the extent collected from the related Mortgagor (without regard to
any prepayment premium or Yield Maintenance Charge actually collected), that
would have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such prepayment from and after such Due Date and ending on the date of such
prepayment.
"Prepayment Interest Shortfall": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Determination Date (or, with respect to
each Mortgage Loan with a Due Date occurring after the related Determination
Date, the related Due Date) and prior to the following Due Date, the amount of
interest, to the extent not collected from the related Mortgagor (without regard
to any prepayment premium or Yield Maintenance Charge actually collected), that
would have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such Principal Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage Loan and ending on
such Due Date.
"Primary Collateral": With respect to any Crossed Loan, that portion
of the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Primary Servicing Fee": The monthly fee payable by the applicable
Master Servicer from the Servicing Fee to each Initial Sub-Servicer, which
monthly fee accrues at the rate per annum specified as such in the Sub-Servicing
Agreement with such Initial Sub-Servicer.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of the New York City edition of The Wall Street Journal (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Trustee in its reasonable discretion) as may be in effect
from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Trustee in its reasonable discretion) as
may be in effect from time to time.
"Principal Distribution Amount": With respect to any Distribution
Date and any Class of Regular Certificates (other than the Class A-2FL, Class
X-1 and Class X-2 Certificates) and the Class A-2FL Regular Interest, an amount
equal to the sum of (a) the Principal Shortfall for such Distribution Date, (b)
the Scheduled Principal Distribution Amount for such Distribution Date and (c)
the Unscheduled Principal Distribution Amount for such Distribution Date;
provided, that the Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Mortgage Loans in a period during which such
principal collections would have otherwise been included in the Principal
Distribution Amount for such Distribution Date and (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Mortgage Loans in a period during which such principal collections would
have otherwise been included in the Principal Distribution Amount for such
Distribution Date (provided, that, in the case of clause (i) and (ii) above, if
any of the amounts that were reimbursed from principal collections on the
Mortgage Loans are subsequently recovered on the related Mortgage Loan, such
recovery will increase the Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs).
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"Principal Shortfall": For any Distribution Date after the initial
Distribution Date with respect to the Majority Mortgage Loans, the amount, if
any, by which (a) the related Principal Distribution Amount for the preceding
Distribution Date, exceeds (b) the aggregate amount distributed in respect of
principal on the Class A, Class A-M, Class A-J, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
O, Class P, Class Q and Class NR Certificates and the Class A-2FL Regular
Interest for such preceding Distribution Date pursuant to Section 4.01(a) on
such preceding Distribution Date. The Principal Shortfall for the initial
Distribution Date will be zero.
"Privileged Person": Each Rating Agency, any of the Holders of each
Class of Certificates, each Underwriter, the Initial Purchaser, each Mortgage
Loan Seller (solely with respect to the Mortgage Loans sold by such Mortgage
Loan Seller to the Trust) and certain financial market publishers (which
initially shall be Bloomberg, L.P., Xxxxx, LLC and Intex Solutions, Inc.), each
party to this Agreement, the Swap Counterparty, the Directing Certificateholder,
any designee of the Depositor and any other Person who shall have provided the
Trustee with a certificate, using the form attached hereto as Exhibit V, which
form is available from the Trustee, certifying that such Person is a
Certificateholder, a beneficial owner or a prospective purchaser of a
Certificate.
"Prospectus": The Prospectus dated November 4, 2005, as supplemented
by the Prospectus Supplement dated December 21, 2005, relating to the offering
of the Offered Certificates.
"Purchase Option": As defined in Section 3.18(a)(ii).
"Purchase Option Notice": As defined in Section 3.18(a)(iii).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan) to
be purchased by a Mortgage Loan Seller pursuant to Section 6 of the related
Mortgage Loan Purchase Agreement, by the Majority Controlling Class
Certificateholder, the Special Servicer or the applicable Master Servicer
pursuant to Section 3.18(b), by the applicable Master Servicer, the Special
Servicer, the Holders of the Controlling Class or the Holders of the Class LR
Certificates pursuant to Section 9.01 or to be otherwise sold pursuant to
Section 3.18(d), a price equal to:
(i) the outstanding principal balance of such Mortgage Loan
(or related REO Loan) as of the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan (or
the related REO Loan) at the related Mortgage Rate in effect from
time to time (exclusive of Default and Excess Interest) to but not
including the Due Date immediately preceding the Determination Date
for the related Distribution Date in which such Purchase Price is
included in the Available Distribution Amount; plus
(iii) all related Servicing Advances that are unreimbursed out
of collections from the Mortgage Loan and accrued and unpaid
interest on related Advances at the Reimbursement Rate, and any
Special Servicing Fees whether paid or then owing allocable to such
Mortgage Loan and all additional Trust Fund expenses in respect of
such Mortgage Loan; plus
(iv) if such Mortgage Loan (or REO Loan) is being purchased by
a Mortgage Loan Seller pursuant to Section 6 of the applicable
Mortgage Loan Purchase Agreement, to the extent not otherwise
included pursuant to clause (iii), all reasonable out-of-pocket
expenses reasonably incurred or estimated to be incurred by the
applicable Master Servicer, the Special Servicer, the Depositor and
the Trustee in respect of the Breach or Defect giving rise to the
repurchase obligation, including any expenses arising out of the
enforcement of the repurchase obligation, including, without
limitation, all legal fees and expenses relating to the enforcement
of such repurchase obligation; plus
(v) Liquidation Fees, if any, payable with respect to such
Mortgage Loan.
With respect to any REO Property to be sold pursuant to Section 3.18(c), the
"Purchase Price" shall mean the amount calculated in accordance with the
preceding sentence in respect of the related REO Loan. With respect to any REO
Property to be purchased or sold pursuant to Section 3.18(b) that relates to a
Loan Pair, the term "REO Loan" shall mean the REO Loan with respect to both the
related Mortgage Loan and the related Companion Loans.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A "qualified institutional buyer"
as defined in Rule 144A under the Act.
"Qualified Insurer": (i) With respect to any Mortgage Loan, REO Loan
or REO Property, an insurance company or security or bonding company qualified
to write the related Insurance Policy in the relevant jurisdiction with a
minimum claims paying ability rating of at least "A-" by S&P, "A3" by Xxxxx'x
and "A-" by Fitch , or backed or guaranteed by a company with such a rating and
(ii) with respect to the fidelity bond and errors and omissions Insurance Policy
required to be maintained pursuant to Section 3.07(c), except as set forth in
Section 3.07(c), an insurance company that has a claims paying ability rated no
lower than two ratings below the rating assigned to the then highest rated
outstanding Certificate, but in no event lower than "A-" by S&P, "A3" by Xxxxx'x
and "A-" by Fitch (or, if not rated by one of such Rating Agencies, then at
least "A-" by two other nationally recognized statistical rating organizations
(which may include the other Rating Agencies)) or, in the case of clauses (i)
and (ii), such other rating as each Rating Agency shall have confirmed in
writing will not cause such Rating Agency to downgrade, qualify or withdraw the
then current rating assigned by such Rating Agency to any Class of Certificates
as evidenced in writing.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, whether or not received, not in excess of
the Stated Principal Balance of the deleted Mortgage Loan as of the Due Date in
the calendar month during which the substitution occurs; (ii) have a Mortgage
Rate not less than the Mortgage Rate of the deleted Mortgage Loan; (iii) have
the same Due Date as and grace period no longer than that of the deleted
Mortgage Loan; (iv) accrue interest on the same basis as the deleted Mortgage
Loan (for example, on the basis of a 360-day year consisting of twelve 30-day
months); (v) have a remaining term to stated maturity not greater than, and not
more than two years less than, the remaining term to stated maturity of the
deleted Mortgage Loan; (vi) have a then current loan-to-value ratio not higher
than that of the deleted Mortgage Loan as of the Closing Date and a current
loan-to-value ratio not higher than the then current loan-to-value ratio of the
deleted Mortgage Loan, in each case using the "value" as determined using an MAI
appraisal; (vii) comply (except in a manner that would not be adverse to the
interests of the Certificateholders) as of the date of substitution with all of
the representations and warranties set forth in the applicable Mortgage Loan
Purchase Agreement; (viii) have an environmental report that indicates no
material adverse environmental conditions with respect to the related Mortgaged
Property and which will be delivered as a part of the related Servicing File;
(ix) have a then current debt service coverage ratio of not less than the
original debt service coverage ratio of the deleted Mortgage Loan as of the
Closing Date and a current debt service coverage ratio of not less than the
current debt service coverage ratio of the deleted Mortgage Loan; (x) constitute
a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of
the Code as evidenced by an Opinion of Counsel (provided at the applicable
Mortgage Loan Seller's expense); (xi) not have a maturity date or an
amortization schedule after the date two years prior to the Rated Final
Distribution Date; (xii) have comparable prepayment restrictions to those of the
deleted Mortgage Loan; (xiii) not be substituted for a deleted Mortgage Loan
unless the Trustee has received prior confirmation in writing by each Rating
Agency that such substitution will not result in the withdrawal, downgrade, or
qualification of the rating assigned by the Rating Agency to any Class of
Certificates then rated by the Rating Agency (the cost, if any, of obtaining
such confirmation to be paid by the applicable Mortgage Loan Seller); (xiv) have
been approved by the Directing Certificateholder; (xv) prohibit defeasance
within two years of the Closing Date; (xvi) not be substituted for a deleted
Mortgage Loan if it would result in the termination of the REMIC status of
either of the REMICs established under this Agreement or the imposition of tax
on either of such REMICs other than a tax on income expressly permitted or
contemplated to be imposed by the terms of this Agreement, as determined by an
Opinion of Counsel; (xvii) have an engineering report with respect to the
related Mortgaged Property that will be delivered as a part of the related
Servicing File; (xviii) become a part of the same Loan Group as the deleted
Mortgage Loan, and (xix) be current in the payment of all scheduled payments of
principal and interest then due. In the event that more than one mortgage loan
is substituted for a deleted Mortgage Loan, then the amounts described in clause
(i) shall be determined on the basis of aggregate Stated Principal Balances and
each such proposed Qualified Substitute Mortgage Loan shall individually satisfy
each of the requirements specified in (ii) through (xix); provided, the rates
described in clause (ii) above and the remaining term to stated maturity
referred to in clause (v) above shall be determined on a weighted average basis;
provided further, that no individual Mortgage Rate (net of the Servicing Fee
Rate and the Trustee Fee Rate) shall be lower than the highest fixed
Pass-Through Rate (and not subject to a cap equal to the Weighted Average Net
Mortgage Rate) of any class of Regular Certificates (other than the Class A-2FL
Certificates) or the Class A-2FL Regular Interest having a principal balance
then outstanding. When a Qualified Substitute Mortgage Loan is substituted for a
deleted Mortgage Loan, the applicable Mortgage Loan Seller shall certify that
the Mortgage Loan meets all of the requirements of the above definition and
shall send such certification to the Trustee and the Directing
Certificateholders. A Qualified Substitute Mortgage Loan may not be substituted
for either the Houston Galleria Loan or the Houston Galleria Trust Subordinate
Companion Loan.
"Rated Final Distribution Date": As to each Class of Certificates,
December 15, 2044, the first Distribution Date after the 24th month following
the end of the amortization term for the Mortgage Loan that, as of the Cut-off
Date, has the longest remaining amortization term.
"Rating Agency": Each of S&P, Xxxxx'x and Fitch or their successors
in interest. If no such rating agency nor any successor remains in existence,
"Rating Agency" shall be deemed to refer to such nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the
Special Servicer and the Master Servicers, and specific ratings of S&P, Xxxxx'x
and Fitch herein referenced shall be deemed to refer to the equivalent ratings
of the party so designated.
"Rating Agency Trigger Event": The reduction of the Swap
Counterparty's long-term ratings below "A-" by S&P, "A-" by Fitch and "A3" by
Xxxxx'x.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any of the Class A, Class A-M, Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class NR, Class X-1 and
Class X-2 Certificates.
"Regulation AB": Regulation AB under the Act and the Exchange Act.
"Regulation AB Companion Loan Securitization": As defined in Section
3.33.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Book-Entry Certificates": The Regular Certificates
sold in offshore transactions in reliance on Regulation S and represented by one
or more Book-Entry Certificates deposited with the Trustee as custodian for the
Depository.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book-Entry Certificate, a transferee that acquires such Certificate
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in
the form of Exhibit I-1 or Exhibit I-2 hereto, as applicable.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the Prime Rate.
"Related Certificates," "Related Uncertificated Lower-Tier
Interests" and "Related Components of Class X Certificates": For each of the
following Classes of Certificates or the Class A-2FL Regular Interest, as
applicable, the related Class of Uncertificated Lower-Tier Interests and the
related Components of Class X Certificates; for the following Components of the
Class X Certificates, the related Class of Uncertificated Lower-Tier Interests
and the related Class of Certificates or the Class A-2FL Regular Interest, as
applicable, set forth below; and for the following Classes of Uncertificated
Lower-Tier Interests, the related Components of the Class X Certificates and the
related Class of Certificates or the Class A-2FL Regular Interest, as
applicable, set forth below:
Related
Components
Related Uncertificated of Class X
Related Certificates Lower-Tier Interests Certificates
-------------------- -------------------- ------------
Class A-1 Certificates Class LA-1-1 Uncertificated Interest XA-1-1
Class LA-1-2 Uncertificated Interest XA-1-2
Class LA-1-3 Uncertificated Interest XA-1-3
Class LA-1-4 Uncertificated Interest XA-1-4
Class LA-1-5 Uncertificated Interest XA-1-5
Class A-1A Certificates Class LA-1A-1 Uncertificated Interest XA-1A-1
Class LA-1A-2 Uncertificated Interest XA-1A-2
Class LA-1A-3 Uncertificated Interest XA-1A-3
Class LA-1A-4 Uncertificated Interest XA-1A-4
Class LA-1A-5 Uncertificated Interest XA-1A-5
Class LA-1A-6 Uncertificated Interest XA-1A-6
Class LA-1A-7 Uncertificated Interest XA-1A-7
Class LA-1A-8 Uncertificated Interest XA-1A-8
Class LA-1A-9 Uncertificated Interest XA-1A-9
Class LA-1A-10 Uncertificated Interest XA-1A-10
Class LA-1A-11 Uncertificated Interest XA-1A-11
Class LA-1A-12 Uncertificated Interest XA-1A-12
Class LA-1A-13 Uncertificated Interest XA-1A-13
Class LA-1A-14 Uncertificated Interest XA-1A-14
Class LA-1A-15 Uncertificated Interest XA-1A-15
Class A-2FL Regular Class LA-2FL-1 Uncertificated Interest XA-2FL-1
Interest
Class LA-2FL-2 Uncertificated Interest XA-2FL-2
Class LA-2FL-3 Uncertificated Interest XA-2FL-3
Class A-2 Certificates Class LA-2-1 Uncertificated Interest XA-2-1
Class LA-2-2 Uncertificated Interest XA-2-2
Class A-3 Certificates Class LA-3-1 Uncertificated Interest XA-3-1
Class LA-3-2 Uncertificated Interest XA-3-2
Class A-4 Certificates Class LA-4-1 Uncertificated Interest XA-4-1
Class LA-4-2 Uncertificated Interest XA-4-2
Class LA-4-3 Uncertificated Interest XA-4-3
Class LA-4-4 Uncertificated Interest XA-4-4
Class LA-4-5 Uncertificated Interest XA-4-5
Class LA-4-6 Uncertificated Interest XA-4-6
Class LA-4-7 Uncertificated Interest XA-4-7
Class A-SB Certificates Class LA-SB-1 Uncertificated Interest XA-SB-1
Class LA-SB-2 Uncertificated Interest XA-SB-2
Class LA-SB-3 Uncertificated Interest XA-SB-3
Class LA-SB-4 Uncertificated Interest XA-SB-4
Class LA-SB-5 Uncertificated Interest XA-SB-5
Class LA-SB-6 Uncertificated Interest XA-SB-6
Class A-M Certificates Class LA-M Uncertificated Interest XA-M
Class A-J Certificates Class LA-J Uncertificated Interest XA-J
Class B Certificates Class LB Uncertificated Interest XB
Class C Certificates Class LC Uncertificated Interest XC
Class D Certificates Class LD Uncertificated Interest XD
Class E Certificates Class LE Uncertificated Interest XE
Class F Certificates Class LF Uncertificated Interest XF
Class G Certificates Class LG-1 Uncertificated Interest XG-1
Class LG-2 Uncertificated Interest XG-2
Class LG-3 Uncertificated Interest XG-3
Class H Certificates Class LH-1 Uncertificated Interest XH-1
Class LH-2 Uncertificated Interest XH-2
Class LH-3 Uncertificated Interest XH-3
Class J Certificates Class LJ-1 Uncertificated Interest XJ-1
Class LJ-2 Uncertificated Interest XJ-2
Class LJ-3 Uncertificated Interest XJ-3
Class K Certificates Class LK-1 Uncertificated Interest XK-1
Class LK-2 Uncertificated Interest XK-2
Class LK-3 Uncertificated Interest XK-3
Class L Certificates Class LL-1 Uncertificated Interest XL-1
Class LL-2 Uncertificated Interest XL-2
Class M Certificates Class LM-1 Uncertificated Interest XM-1
Class LM-2 Uncertificated Interest XM-2
Class N Certificates Class LN Uncertificated Interest XN
Class O Certificates Class LO Uncertificated Interest XO
Class P Certificates Class LP Uncertificated Interest XP
Class Q Certificates Class LQ-1 Uncertificated Interest XQ-1
Class LQ-2 Uncertificated Interest XQ-2
Class NR Certificates Class LNR Uncertificated Interest XNR
Class HG-1 Certificates Class LHG-1 Uncertificated Interest N/A
Class HG-2 Certificates Class LHG-2 Uncertificated Interest N/A
Class HG-3 Certificates Class LHG-3 Uncertificated Interest N/A
Class HG-4 Certificates Class LHG-4 Uncertificated Interest N/A
Class HG-5 Certificates Class LHG-5 Uncertificated Interest N/A
Class HG-X Certificates Class LHG-X Uncertificated Interest N/A
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 10.04.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "Midland
Loan Services, Inc., or the applicable successor Special Servicer, as Special
Servicer, for the benefit of LaSalle Bank National Association, as Trustee, in
trust for registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5, REO
Account." Any such account or accounts shall be an Eligible Account.
"REO Acquisition": The acquisition for federal income tax purposes
of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
be outstanding for so long as the related REO Property remains part of the Trust
Fund and provides for Assumed Scheduled Payments on each Due Date therefor, and
otherwise has the same terms and conditions as its predecessor Mortgage Loan,
including, without limitation, with respect to the calculation of the Mortgage
Rate in effect from time to time (such terms and conditions to be applied
without regard to the default on such predecessor Mortgage Loan). Each REO Loan
shall be deemed to have an initial outstanding principal balance and Stated
Principal Balance equal to the outstanding principal balance and Stated
Principal Balance, respectively, of its predecessor Mortgage Loan as of the date
of the related REO Acquisition. All amounts due and owing in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition,
including, without limitation, accrued and unpaid interest, shall continue to be
due and owing in respect of a REO Loan. All amounts payable or reimbursable to
the applicable Master Servicer, the Special Servicer or the Trustee, as
applicable, in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, including, without limitation, any unpaid Special
Servicing Fees and Servicing Fees, additional Trust Fund expenses and any
unreimbursed Advances, together with any interest accrued and payable to the
applicable Master Servicer or the Trustee, as applicable, in respect of such
Advances in accordance with Section 3.03(d) or Section 4.03(d), shall continue
to be payable or reimbursable to the applicable Master Servicer or the Trustee,
as applicable, in respect of an REO Loan. In addition, Unliquidated Advances and
Nonrecoverable Advances with respect to such REO Loan, in each case, that were
paid from collections on the Mortgage Loans and resulted in principal
distributed to the Certificateholders being reduced as a result of the first
proviso in the definition of "Principal Distribution Amount", "Loan Group 1
Principal Distribution Amount" or "Loan Group 2 Principal Distribution Amount"
shall be deemed outstanding until recovered. Collections in respect of each REO
Loan (exclusive of the amounts to be applied to the payment of, or to be
reimbursed to the applicable Master Servicer or the Special Servicer for the
payment of unreimbursed Advances and interest thereon and the costs of
operating, managing, selling, leasing and maintaining the related REO Property)
shall be treated: first, as a recovery of accrued and unpaid interest on such
REO Loan at the related Mortgage Rate in effect from time to time to, but not
including, the Due Date in the Due Period of receipt (exclusive of any portion
that constitutes Excess Interest); second, as a recovery of Unliquidated
Advances with respect to such REO Loan that relate to Advances and were paid
from collections on the Mortgage Loans and resulted in principal distributed to
the Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", "Loan Group 1 Principal
Distribution Amount" or "Loan Group 2 Principal Distribution Amount"; third, as
a recovery of principal of such REO Loan to the extent of its entire unpaid
principal balance; fourth, as a recovery of Nonrecoverable Advances, with
respect to such REO Loan, that relate to Advances and were paid from collections
on the Mortgage Loans and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", "Loan Group 1 Principal
Distribution Amount" or "Loan Group 2 Principal Distribution Amount"; and fifth,
in accordance with the Servicing Standards, as a recovery of any other amounts
due and owing in respect of such REO Loan, including, without limitation, (i)
Penalty Charges, (ii) Yield Maintenance Charges and (iii) Excess Interest and
other amounts, in that order.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of, and in the name of, the Trustee or a nominee thereof for
the benefit of the Certificateholders (and the related Companion Holder, subject
to the related Intercreditor Agreement, with respect to a Mortgaged Property
securing a Loan Pair) and the Trustee (as holder of the Class A-2FL Regular
Interest and the Uncertificated Lower-Tier Interests) 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.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Request for Release": A release signed by a Servicing Officer of
the applicable Master Servicer or the Special Servicer, as applicable, in the
form of Exhibit E attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to each of the initial
Trustee, any Vice President, Assistant Vice-President, Assistant Secretary or
corporate trust officer in the corporate trust department of the Trustee or the
Global Securities and Trust Services Group of the Trustee, and with respect to
any successor Trustee, any officer or assistant officer in the corporate trust
department of the Successor Trustee, any other 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.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which Certificates are first
offered to Persons other than the Initial Purchaser and any other distributor
(as such term is defined in Regulation S) of the Certificates and (b) the
Closing Date.
"Retained Fee Rate": A rate of 0.005% per annum.
"Revised Rate": With respect to those Mortgage Loans on the Mortgage
Loan Schedule indicated as having a revised rate, the increased interest rate
after the Anticipated Repayment Date (in the absence of a default) for each
applicable Mortgage Loan, as calculated and as set forth in the related Mortgage
Loan.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Book-Entry Certificate": With respect to any Class of
Certificates offered and sold in reliance on Rule 144A, a single, permanent
Book-Entry Certificate, in definitive, fully registered form without interest
coupons.
"S&P": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors in interest. If S&P nor any
successor remains in existence, "S&P" shall be deemed to refer to such other
nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the applicable Master Servicer and the Special Servicer and specific
ratings of S&P herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date and the Majority Mortgage Loans, the aggregate of the
principal portions of (a) all Monthly Payments (excluding Balloon Payments and
Excess Interest) due in respect of such Mortgage Loans during or, if and to the
extent not previously received or advanced pursuant to Section 4.03 in respect
of a preceding Distribution Date, prior to, the related Due Period, and all
Assumed Scheduled Payments for the related Due Period, in each case to the
extent either (i) paid by the Mortgagor as of the Determination Date (or, with
respect to each Mortgage Loan with a Due Date occurring or a grace period ending
after the related Determination Date, the related Due Date or last day of such
grace period, as applicable, to the extent received by the Master Servicer as of
the Business Day preceding the related P&I Advance Date) (and not previously
distributed to Certificateholders) or (ii) advanced by the applicable Master
Servicer or the Trustee, as applicable, pursuant to Section 4.03 in respect of
such Distribution Date, and (b) all Balloon Payments to the extent received on
or prior to the related Determination Date (or, with respect to each Mortgage
Loan with a Due Date occurring or a grace period ending after the related
Determination Date, the related Due Date or last day of such grace period, as
applicable, to the extent received by the applicable Master Servicer as of the
Business Day preceding the related P&I Advance Date), and to the extent not
included in clause (a) above.
"Securities Act": The Securities Act of 1933, as it may be amended
from time to time.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement or equivalent instrument, whether contained in the related
Mortgage or executed separately, creating in favor of the holder of such
Mortgage a security interest in the personal property constituting security for
repayment of such Mortgage Loan.
"Serviced Pari Passu Companion Loan": Any of the Houston Galleria
Pari Passu Companion Loans if and for so long as such Companion Loan is included
a Regulation AB Companion Loan Securitization.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the applicable Master Servicer, the Special
Servicer or the Trustee, as applicable, in connection with the servicing and
administering of (a) a Mortgage Loan (and in the case of an AB Mortgage Loan or
the Houston Galleria Loan, the related Companion Loan(s)) in respect of which a
default, delinquency or other unanticipated event has occurred or as to which a
default is reasonably foreseeable or (b) an REO Property, including (in the case
of each of such clause (a) and clause (b)), but not limited to, (x) the cost of
(i) compliance with the applicable Master Servicer's obligations set forth in
Section 3.03(c), (ii) the preservation, restoration and protection of a
Mortgaged Property, (iii) obtaining any Insurance and Condemnation Proceeds or
any Liquidation Proceeds of the nature described in clauses (i)-(iv) of the
definition of "Liquidation Proceeds," (iv) any enforcement or judicial
proceedings with respect to a Mortgaged Property, including foreclosures and (v)
the operation, leasing, management, maintenance and liquidation of any REO
Property and (y) any amount specifically designated herein to be paid as a
"Servicing Advance". Notwithstanding anything to the contrary, "Servicing
Advances" shall not include allocable overhead of the applicable Master Servicer
or the Special Servicer, such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses or costs and expenses incurred by any such
party in connection with its purchase of a Mortgage Loan or REO Property.
"Servicing Fee": With respect to each Mortgage Loan, Companion Loan
and REO Loan, the fee payable to the applicable Master Servicer pursuant to the
first paragraph of Section 3.11(a).
"Servicing Fee Amount": With respect to the applicable Master
Servicer and any date of determination, the aggregate of the products obtained
by multiplying, for each Mortgage Loan, (a) the Stated Principal Balance of such
Mortgage Loan as of the end of the immediately preceding Due Period and (b) the
difference between the Servicing Fee Rate for such Mortgage Loan over the
servicing fee rate (if any) applicable to such Mortgage Loan as specified in any
Sub-Servicing Agreement related to such Mortgage Loan. With respect to each
Sub-Servicer and any date of determination, the aggregate of the products
obtained by multiplying, for each Mortgage Loan serviced by such Sub-Servicer,
(a) the Stated Principal Balance of such Mortgage Loan as of the end of the
immediately preceding Due Period and (b) the servicing fee rate specified in the
related Sub-Servicing Agreement for such Mortgage Loan.
"Servicing Fee Rate": With respect to each Mortgage Loan and REO
Loan, a rate equal to the per annum rate set forth on the Mortgage Loan Schedule
under the heading "Servicing Fee Rate," in each case computed on the basis of
the Stated Principal Balance of the related Mortgage Loan. With respect to the
Houston Galleria Companion Loans, the Brookdale Office Portfolio Companion Loan,
the Jordan Creek Companion Loan and the 30 West Monroe Companion Loan, a per
annum rate equal to 0.01%, and with respect to each of the other Companion
Loans, the rate payable to the applicable Master Servicer with respect to the
related Mortgage Loan as set forth in the related Intercreditor Agreement.
"Servicing File": Shall mean a photocopy of all items required to be
included in the Mortgage File, together with each of the following, to the
extent such items were actually delivered to the related Mortgage Loan Seller
with respect to a Mortgage Loan and (to the extent that the identified documents
existed on the Closing Date and the applicable reference to Servicing File
relates to any period after the Closing Date) delivered by the related Mortgage
Loan Seller to the applicable Master Servicer: (i) a copy of any engineering
reports, environmental reports or property condition reports; (ii) other than
with respect to a hotel property (except with respect to tenanted commercial
space within a hotel property), copies of a rent roll and, for any office,
retail, industrial or warehouse property, a copy of all leases and estoppels and
subordination and non-disturbance agreements delivered to the Mortgage Loan
Seller; (iii) copies of related financial statements or operating statements;
(iv) all legal opinions (excluding attorney-client communications between the
Mortgage Loan Seller and its counsel which are privileged communications or
constitute legal or other due diligence analyses), Mortgagor's Certificates and
certificates of hazard insurance and/or hazard insurance policies or other
applicable insurance policies, if any, delivered in connection with the closing
of the Mortgage Loan; (v) a copy of the Appraisal for the related Mortgaged
Property(ies); and (vi) for any Mortgage Loan that the related Mortgaged
Property is leased to a single tenant, a copy of the lease.
"Servicing Group": Servicing Group A or Servicing Group B, as
applicable.
"Servicing Group A": Collectively, all of the Mortgage Loans that
are Group A Mortgage Loans and any successor REO Loans with respect thereto.
"Servicing Group B": Collectively, all of the Mortgage Loans that
are Group B Mortgage Loans and any successor REO Loans with respect thereto.
"Servicing Officer": Any officer and/or employee of the applicable
Master Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by the applicable
Master Servicer and the Special Servicer to the Trustee and the Depositor on the
Closing Date as such list may be amended from time to time thereafter.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standards": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan or
Companion Loan, the occurrence of any of the following events:
(i) with respect to a Mortgage Loan that is not a Balloon
Loan, a payment default shall have occurred at the original Maturity
Date, or, if the original Maturity Date of such Mortgage Loan or
Companion Loan has been extended, a payment default shall have
occurred at such extended Maturity Date; or
(ii) in the case of a Balloon Payment, such payment is
delinquent and the related Mortgagor has not provided the applicable
Master Servicer on or prior to the related Maturity Date (or the
60th day after the related Maturity Date with respect to a Mortgage
Loan where the Mortgagor has continued to make its Assumed Scheduled
Payments and is diligently pursuing re-financing) with a bona fide
written commitment for refinancing, reasonably satisfactory in form
and substance to such Master Servicer, which provides that such
refinancing will occur within 120 days after the Maturity Date,
provided that if such refinancing does not occur within such 120-day
period, the related Mortgage Loan will become a Specially Serviced
Mortgage Loan at the end of such 120-day period (or at the end of
any shorter period beyond the date on which that Balloon Payment was
due within which the refinancing is scheduled to occur); or
(iii) any Monthly Payment (other than a Balloon Payment) is
more than 60 days delinquent (unless, in the case of each AB
Mortgage Loan or Mortgage Loan with mezzanine debt the holder of the
related Companion Loan or mezzanine debt cures such delinquency or
with respect to Houston Galleria Loan only, the Houston Galleria
Controlling Holder has cured such delinquency pursuant to the
Houston Galleria Intercreditor Agreement prior to such Monthly
Payment becoming more than 60 days delinquent); or
(iv) the applicable Master Servicer or the Special Servicer
(in the case of the Special Servicer, with the consent of the
Directing Certificateholder), as the case may be, makes a judgment
that a payment default is imminent and is not likely to be cured by
the related Mortgagor within 60 days; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law, or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs, is entered against the related
Mortgagor; provided, that if such decree or order is discharged or
stayed within 60 days of being entered, or if, as to a bankruptcy,
the automatic stay is lifted within 60 days of a filing for relief
or the case is dismissed, upon such discharge, stay, lifting or
dismissal such Mortgage Loan or Companion Loan shall no longer be a
Specially Serviced Mortgage Loan (and no Special Servicing Fees,
Workout Fees or Liquidation Fees will be payable with respect
thereto and any such fees actually paid shall be reimbursed by the
Special Servicer); or
(vi) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(vii) the related Mortgagor shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(viii) a default of which the applicable Master Servicer or
the Special Servicer, as the case may be, has notice (other than a
failure by such Mortgagor to pay principal or interest) and which
the applicable Master Servicer or Special Servicer (in the case of
the Special Servicer, with the consent of the Directing
Certificateholder) determines in its good faith reasonable judgment,
may materially and adversely affect the interests of the
Certificateholders or the holders of the related Companion Loan, if
applicable, has occurred and remained unremedied for the applicable
grace period specified in the related Mortgage Loan or Companion
Loan documents, other than the failure to maintain terrorism
insurance if such failure constitutes an Acceptable Insurance
Default (or if no grace period is specified for those defaults which
are capable of cure, 60 days); or
(ix) the applicable Master Servicer has received notice of the
foreclosure or proposed foreclosure of any other lien on the related
Mortgaged Property; or
(x) the applicable Master Servicer or Special Servicer (in the
case of the Special Servicer, with the consent of the Directing
Certificateholder) determines that (A) a default (other than as
described in clause (iv) above) under the related Mortgage Loan is
imminent, (B) such default will materially impair the value of the
corresponding Mortgaged Property as security for the related
Mortgage Loan or otherwise materially adversely affect the interests
of Certificateholders (or, with respect to each AB Mortgage Loan or
the Houston Galleria Whole Loan, the holder of the related Companion
Loan(s)) and (C) the default will continue unremedied for the
applicable cure period under the terms of the related Mortgage Loan
or, if no cure period is specified and the default is capable of
being cured, for 30 days (provided that such 30-day grace period
does not apply to a default that gives rise to immediate
acceleration without application of a grace period under the terms
of the related Mortgage Loan); provided that any determination that
a Servicing Transfer Event has occurred under this clause (x), with
respect to any Mortgage Loan solely by reason of the failure (or
imminent failure) of the related Mortgagor to maintain or cause to
be maintained insurance coverage against damages or losses arising
from acts of terrorism, may be made only by the Special Servicer
(with the consent of the Directing Certificateholder).
provided, if a Companion Loan becomes a Specially Serviced Mortgage Loan, the
related AB Mortgage Loan or the Houston Galleria Loan and Houston Galleria Trust
Subordinate Companion Loan, as applicable, shall also become a Specially
Serviced Mortgage Loan. If an AB Mortgage Loan or the Houston Galleria Loan or
the Houston Galleria Trust Subordinate Companion Loan, as applicable, becomes a
Specially Serviced Mortgage Loan, the related Companion Loan(s) shall become a
Specially Serviced Mortgage Loan(s). If any Mortgage Loan in a Crossed Group
becomes a Specially Serviced Mortgage Loan, each other Mortgage Loan in such
Crossed Group shall also become a Specially Serviced Mortgage Loan.
"Similar Law": As defined in Section 5.02(c).
"Sole Certificateholder": Any Certificate Owner of a book-entry
Certificate or a Holder of a definitive Certificate holding 100% of the Class
X-1, Class X-2, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class Q, Class NR, Class HG-1, Class HG-2, Class HG-3, Class
HG-4, Class HG-5 and Class HG-X Certificates or, with respect to such Classes of
Certificates an assignment of the voting rights thereof; provided, however, that
the Certificate Balances of the Class A-1, Class A-2FL, Class X-0, Xxxxx X-0,
Class A-4 Class A-SB, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class
D, Class E and Class F Certificates have been retired.
"Special Servicer": Midland Loan Services, Inc., a Delaware
corporation, and its successors in interest and assigns, or any successor
Special Servicer appointed as allowed herein.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan (including any Companion Loan that becomes a
Specially Serviced Mortgage Loan), the fee payable to the Special Servicer
pursuant to the first paragraph of Section 3.11(b); provided, however, no
Special Servicing Fee will be payable with respect to the Jordan Creek Loan Pair
or the Brookdale Office Portfolio Loan Pair if such loan is a Specially Serviced
Mortgage Loan as a result of a Servicing Transfer Event under clause (x) of the
definition thereof that does not result in an actual (as opposed to imminent)
Event of Default.
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum computed on the basis
of the Stated Principal Balance of the related Mortgage Loan (including any REO
Loan) or Companion Loan (if provided for under the related Intercreditor
Agreement) in the same manner as interest is calculated on the Specially
Serviced Mortgage Loans.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan (or in the case of a Qualified Substitute Mortgage
Loan, the unpaid principal balance of such Mortgage Loan after application of
all scheduled payments of principal and interest due during or prior to the
month of substitution, whether or not received), plus (y) any Mortgage Deferred
Interest added to the principal balance of such Mortgage Loan on or before the
end of the immediately preceding Due Period minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Mortgage Loan after the Cut-off Date (or in the case of a Qualified
Substitute Mortgage Loan, the Due Date in the related month of
substitution), to the extent received from the Mortgagor or advanced
by the applicable Master Servicer;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date (or in the case of a Qualified
Substitute Mortgage Loan, the Due Date in the related month of
substitution);
(iii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan) and Liquidation Proceeds received with respect to
such Mortgage Loan after the Cut-off Date (or in the case of a
Qualified Substitute Mortgage Loan, the Due Date in the related
month of substitution); and
(iv) any reduction in the outstanding principal balance of
such Mortgage Loan resulting from a Deficient Valuation that
occurred prior to the end of the Due Period for the most recent
Distribution Date.
With respect to any REO Loan that is a successor to a Mortgage Loan,
as of any date of determination, an amount equal to (x) the Stated Principal
Balance of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect
to such REO Loan; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan), Liquidation Proceeds and REO Revenues received with
respect to such REO Loan.
A Mortgage Loan or a REO Loan that is a successor to a Mortgage Loan
shall be deemed to be part of the Trust Fund and to have an outstanding Stated
Principal Balance until the Distribution Date on which the payments or other
proceeds, if any, received in connection with a Liquidation Event in respect
thereof are to be (or, if no such payments or other proceeds are received in
connection with such Liquidation Event, would have been) distributed to
Certificateholders.
With respect to any Companion Loan on any date of determination, the
Stated Principal Balance shall equal the unpaid principal balance of such
Companion Loan as of such date.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Subordinate Certificate": Any Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O, Class P, Class Q or Class NR Certificate.
"Sub-Servicer": Any Person with which the applicable Master Servicer
has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the
applicable Master Servicer or the Special Servicer, as the case may be, and any
Sub-Servicer relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan. In the event that one or more Qualified Substitute
Mortgage Loans are substituted (at the same time by the same Mortgage Loan
Seller) for one or more deleted Mortgage Loans, the Substitution Shortfall
Amount shall be determined as provided in the preceding sentence on the basis of
the aggregate Purchase Prices of the Mortgage Loan or Mortgage Loans being
replaced and the aggregate Stated Principal Balances of the related Qualified
Substitute Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Swap Contract": The 1992 ISDA Master Agreement, together with the
related schedule, confirmation and any annexes thereto, dated as of December 28,
2005, by and among the Swap Counterparty and the Trustee, solely in its capacity
as Trustee, on behalf of the Trust.
"Swap Counterparty": JPMorgan Chase Bank, N.A., acting in such
capacity, or its successor in interest.
"Swap Counterparty Collateral Account": The trust account or
accounts created and maintained as a separate account or accounts by the Trustee
pursuant to Section 3.32(g), which shall be entitled "LaSalle Bank National
Association, as Trustee, in trust for the registered Holders of X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage Pass Through
Certificates, Series 2005-LDP5 Class A-2FL Certificates (subject to the rights
of the Swap Counterparty as provided in the Swap Contract), Swap Counterparty
Collateral Account," and which must be an Eligible Account (or a subaccount of
an Eligible Account). The Swap Counterparty Collateral Account shall not be an
asset of either the Lower-Tier REMIC or the Upper-Tier REMIC formed hereunder.
"Swap Default": Any failure on the part of the Swap Counterparty to
(i) make a required payment under the Swap Contract or (ii) either post
acceptable collateral or find an acceptable replacement Swap Counterparty after
a Rating Agency Trigger Event has occurred as required by Part 1, paragraph (k)
of the Schedule to the Master Agreement in the related Swap Contract.
"Swap Termination Fees": Any fees or expenses payable by the Swap
Counterparty to the Trust in connection with a Swap Default, termination of the
Swap Contract or liquidation of the Swap Contract, as specified in the Swap
Contract.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC
due to its classification as a REMIC under the REMIC Provisions, and the
applicable federal income tax returns to be filed on behalf of the Grantor
Trust, together with any and all other information, reports or returns that may
be required to be furnished to the Certificateholders or filed with the Internal
Revenue Service or any other governmental taxing authority under any applicable
provisions of federal tax law or Applicable State and Local Tax Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferable Servicing Interest": Subject to reduction by the
Trustee pursuant to Section 3.11(a), the amount by which the Servicing Fee
otherwise payable to Master Servicer No. 1 hereunder exceeds the sum of (i) the
Primary Servicing Fee and (ii) the amount of the Servicing Fee calculated using
the Retained Fee Rate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
"Trust": The trust created hereby and to be administered hereunder.
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date (or with respect to a Qualified
Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any
REO Property (to the extent of the Trust Fund's interest therein); (iv) all
revenues received in respect of any REO Property (to the extent of the Trust
Fund's interest therein); (v) the applicable Master Servicer's, the Special
Servicer's and the Trustee's rights under the insurance policies with respect to
the Mortgage Loans required to be maintained pursuant to this Agreement and any
proceeds thereof (to the extent of the Trust Fund's interest therein); (vi) any
Assignments of Leases and any security agreements (to the extent of the Trust
Fund's interest therein); (vii) any letters of credit, indemnities, guaranties
or lease enhancement policies given as additional security for any Mortgage
Loans (to the extent of the Trust Fund's interest therein); (viii) all assets
deposited in the Servicing Accounts (to the extent of the Trust Fund's interest
therein), amounts on deposit in the Certificate Accounts, the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Floating Rate Account, the Interest Reserve Account,
the Gain-on-Sale Reserve Account (to the extent of the Trust Fund's interest in
the Gain-on-Sale Reserve Account) and any REO Account (to the extent of the
Trust Fund's interest in such REO Account), including any reinvestment income,
as applicable; (ix) any Environmental Indemnity Agreements (to the extent of the
Trust Fund's interest therein); (x) the rights and remedies of the Depositor
under each Mortgage Loan Purchase Agreement (to the extent transferred to the
Trustee); (xi) the Uncertificated Lower-Tier Interests and the Class A-2FL
Regular Interest; (xii) the Swap Contract; and (xiii) the proceeds of the
foregoing (other than any interest earned on deposits in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the
extent such interest belongs to the related Mortgagor).
"Trust Related Litigation": As defined in Section 3.10(d).
"Trustee": LaSalle Bank National Association, a national banking
association, in its capacity as Trustee and its successors in interest, or any
successor Trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(b).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement. No portion of the Trustee Fee
shall be calculated by reference to any Companion Loan or the principal balance
of any Companion Loan.
"Trustee Fee Rate": A rate equal to 0.0003% per annum computed on
the basis of the Stated Principal Balance of the related Mortgage Loan (and in
the same manner as interest is calculated on the related Mortgage Loan) as of
the preceding Distribution Date.
"Trustee's Direction": As defined in Section 7.01(a).
"Trust-Related Litigation": As defined in Section 3.10(c).
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement prepared and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Class HG Lower-Tier Interests": Any of the Class
LHG-1, Class LHG-2, Class LHG-3, Class LHG-4, Class LHG-5 and Class LHG-X
Uncertificated Interests.
"Uncertificated Lower-Tier Interests": Any of the Class LA-1-1,
Class LA-1-2, Class LA-1-3, Class LA-1-4, Class LA-1-5, Class LA-1A-1, Class
LA-1A-2, Class LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class
LA-1A-7, Class LA-1A-8, Class LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class
LA-1A-12, Class LA-1A-13, Class LA-1A-14, Class LA-1A-15, Class LA-2FL-1, Class
LA-2FL-2, Class LA-2FL-3, Class LA-2-1, Class LA-2-2, Class LA-3-1, Class
LA-3-2, Class LA-4-1, Class LA-4-2, Class LA-4-3, Class LA-4-4, Class LA-4-5,
Class LA-4-6, Class LA-4-7, Class LA-SB-1, Class LA-SB-2, Class LA-SB-3, Class
LA-SB-4, Class LA-SB-5, Class LA-SB-6, Class LA-M, Class LA-J, Class LB, Class
LC, Class LD, Class LE, Class LF, Class LG-1, Class LG-2, Class LG-3, Class
LH-1, Class LH-2, Class LH-3, Class LJ-1, Class LJ-2, Class LJ-3, Class LK-1,
Class LK-2, Class LK-3, Class LL-1, Class LL-2, Class LM-1, Class LM-2, Class
LN, Class LO, Class LP, Class LQ-1, Class LQ-2, Class LNR, Class LHG-X, Class
LHG-1, Class LHG-2, Class LHG-3, Class LHG-4 and Class LHG-5 Uncertificated
Interests.
"Underwriters": X.X. Xxxxxx Securities Inc., Nomura Securities
International, Inc., IXIS Securities North America Inc., PNC Capital Markets
LLC, Deutsche Bank Securities Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and Wachovia Capital Markets, LLC.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (iii) and (iv) of
Section 3.05(a) but that has not been recovered from the Mortgagor or otherwise
from collections on or the proceeds of the Mortgage Loan or REO Property in
respect of which the Advance was made.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date and the Majority Mortgage Loans, the aggregate of (a) all
Principal Prepayments received on such Mortgage Loans on or prior to the
Determination Date (or, with respect to each Mortgage Loan with a Due Date
occurring or a grace period ending after the related Determination Date, the
related Due Date or last day of such grace period, as applicable, to the extent
received by the Master Servicer as of the Business Day preceding the related P&I
Advance Date) and (b) the principal portions of all Liquidation Proceeds,
Insurance and Condemnation Proceeds (net of Special Servicing Fees, Liquidation
Fees, accrued interest on Advances and other additional Trust Fund expenses
incurred in connection with the related Mortgage Loan) and, if applicable, REO
Revenues received with respect to such Mortgage Loans and any REO Loans on or
prior to the related Determination Date (or, with respect to each Mortgage Loan
with a Due Date occurring or a grace period ending after the related
Determination Date, the related Due Date or last day of such grace period, as
applicable, to the extent received by the Master Servicer as of the Business Day
preceding the related P&I Advance Date), but in each case only to the extent
that such principal portion represents a recovery of principal for which no
advance was previously made pursuant to Section 4.03 in respect of a preceding
Distribution Date.
"Upper-Tier Distribution Account": The segregated account or
accounts (or a subaccount of the Distribution Account) created and maintained by
the Trustee pursuant to Section 3.04(b) in trust for the Certificateholders,
which shall be entitled "LaSalle Bank National Association, as Trustee, in trust
for the registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 0000-XXX0,
Xxxxx-Xxxx Distribution Account." Any such account or accounts shall be an
Eligible Account (or a subaccount of the Distribution Account).
"Upper-Tier REMIC": One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Dollars": Lawful money of the United States of America.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in, or under the laws of, the
United States, any State thereof or the District of Columbia, including any
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of its source or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates (allocated pro rata, between the Class X-1 and Class X-2
Certificates based upon their Class Notional Amounts) and (ii) in the case of
any other Class of Regular Certificates (other than the Class X certificates) a
percentage equal to the product of 96% and a fraction, the numerator of which is
equal to the aggregate Certificate Balance of such Class, in each case,
determined as of the Distribution Date immediately preceding such time, and the
denominator of which is equal to the aggregate Certificate Balance of the
Regular Certificates (other than the Class X Certificates), each determined as
of the Distribution Date immediately preceding such time. None of the Class HG
Certificates, Class S Certificates, the Class R Certificates and the Class LR
Certificates will be entitled to any Voting Rights. Voting Rights allocated to a
Class of Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates. Appraisal Reductions shall not result in a change in the Class
Voting Rights of any Class of Regular Certificates.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the applicable Net Mortgage Rates of
the Majority Mortgage Loans as of the first day of the related Due Period,
weighted on the basis of their respective Stated Principal Balances as of the
first day of such Due Period (after giving effect to any payments received
during any applicable grace period).
"Whole Loan": Any of the Loan Pairs or the Houston Galleria Whole
Loan, as applicable.
"Whole Loan Controlling Holder": With respect to the Brookdale
Office Portfolio Loan Pair or the Jordan Creek Loan Pair, so long as no Control
Appraisal Event exists with respect to the related Whole Loan, the related
Companion Holder, and with respect to the Houston Galleria Whole Loan, so long
as no Houston Galleria Control Appraisal Event exists with respect to the
related Whole Loan, the Houston Galleria Controlling Holder.
"Withheld Amounts": As defined in Section 3.25(a).
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan, the amount of any Advances made with respect to such Mortgage
Loan on or before the date such Mortgage Loan becomes (or, but for the making of
three Monthly Payments under its modified terms, would then constitute) a
Corrected Mortgage Loan, together with (to the extent accrued and unpaid)
interest on such Advances, to the extent that (i) such Advance (and accrued and
unpaid interest thereon) is not reimbursed to the Person who made such Advance
on or before the date, if any, on which such Mortgage Loan becomes a Corrected
Mortgage Loan and (ii) the amount of such Advance (and accrued and unpaid
interest thereon) becomes an obligation of the Mortgagor to pay such amount
under the terms of the modified loan documents. That any amount constitutes all
or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner
limit the right of any Person hereunder to determine in the future that such
amount instead constitutes a Nonrecoverable Advance.
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan; provided no Workout Fee shall be payable with
respect to the Jordan Creek Loan Pair or the Brookdale Office Portfolio Loan
Pair if such loan was a Specially Serviced Mortgage Loan as a result of a
Servicing Transfer Event under clause (x) of the definition thereof that did not
result in an actual (as opposed to imminent) Event of Default; provided further,
that with respect to the Brookdale Office Portfolio Loan Pair, the "Workout Fee"
shall not exceed the lesser of (i) $1,000,000 or (ii) 1.00% of amounts received
with respect to such Loan Pair.
"Workout Fee Rate": A fee of 1.00%, with respect to each Corrected
Mortgage Loan of each collection (other than Penalty Charges and Excess
Interest) of interest and principal (other than any amount for which a
Liquidation Fee would be paid), including (i) Monthly Payments, (ii) Balloon
Payments and (iii) payments (other than those included in clause (i) or (ii) of
this definition) at maturity, received on each Corrected Mortgage Loan for so
long as it remains a Corrected Mortgage Loan; provided, however, that with
respect to the Jordan Creek Loan Pair and the Houston Galleria Whole Loan, the
"Workout Fee Rate" will be 0.25%.
"Yield Maintenance Charge": With respect to any Mortgage Loan or REO
Loan, the yield maintenance charge or prepayment premium set forth in the
related Mortgage Loan documents; provided, that no amounts shall be considered
Yield Maintenance Charges until there has been a full recovery of all principal,
interest and other amounts due under the related Mortgage Loan.
Section 1.02 Certain Calculations. Unless otherwise specified
herein, for purposes of determining amounts with respect to the Certificates and
the rights and obligations of the parties hereto, the following provisions shall
apply:
(i) All calculations of interest (other than as provided in the
Mortgage Loan documents) provided for herein shall be made on the basis of
a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan payment is deemed to be received on the date
such payment is actually received by the applicable Master Servicer, the
Special Servicer or the Trustee; provided, however, that for purposes of
calculating distributions on the Certificates, Principal Prepayments with
respect to any Mortgage Loan are deemed to be received on the date they
are applied in accordance with the Servicing Standards consistent with the
terms of the related Mortgage Note and Mortgage to reduce the outstanding
principal balance of such Mortgage Loan on which interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Certificates or the Class A-2FL Regular Interest on or as of a
Distribution Date shall refer to the Certificate Balance of such Class of
Certificates or the Class A-2FL Regular Interest on such Distribution Date
after giving effect to (a) any distributions made on such Distribution
Date pursuant to Section 4.01(a), (b) any Collateral Support Deficit
allocated to such Class of Certificates or the Class A-2FL Regular
Interest on the immediately preceding Distribution Date pursuant to
Section 4.04, (c) the addition of any Certificate Deferred Interest
allocated to such Class of Certificates or the Class A-2FL Regular
Interest and added to such Certificate Balance pursuant to Section 4.06(b)
and (d) any recoveries on the related Mortgage Loan of Nonrecoverable
Advances (plus interest thereon) that were previously reimbursed from
principal collections on the Mortgage Loans that resulted in a reduction
of the Principal Distribution Amount, Loan Group 1 Principal Distribution
Amount or Loan Group 2 Principal Distribution Amount, which recoveries are
allocated to such Class of Certificates or the Class A-2FL Regular
Interest and added to the Certificate Balance pursuant to Section 4.04
(a). The Certificate Balance of the Class A-2FL Certificates shall be
equal to the Certificate Balance of the Class A-2FL Regular Interest at
all times, and any reductions or increases in the Certificate Balance of
the Class A-2FL Regular Interest shall result in a corresponding reduction
or increase, as applicable, of the Certificate Balance of the Class A-2FL
Certificates.
(iv) For purposes of calculations required herein, Excess Interest
shall not be added to the outstanding principal balance of the Mortgage
Loans notwithstanding that the related Loan Documents may provide
otherwise.
[End of Article I]
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, does hereby establish a
trust, appoint the Trustee as Trustee of the trust, assign, sell, transfer and
convey to the Trustee, in trust, without recourse, for the benefit of the
Certificateholders and the Trustee (as holder of the Class A-2FL Regular
Interest and the Uncertificated Lower-Tier Interests) all the right, title and
interest of the Depositor, including any security interest therein for the
benefit of the Depositor, in, to and under (i) the Mortgage Loans identified on
the Mortgage Loan Schedule, (ii) Sections 1, 2, 3, 4, 5, 6(a) (excluding clause
(viii) of Section 6(a)), 6(c), 6(d), 6(e), 6(f), 6(g), 10, 11, 13, 14, 15, 17,
18 and 19 of each of the Mortgage Loan Purchase Agreements, (iii) the
Intercreditor Agreements and (iv) all other assets included or to be included in
the Trust Fund. Such assignment includes all interest and principal received or
receivable on or with respect to the Mortgage Loans (other than (i) payments of
principal and interest due and payable on the Mortgage Loans on or before the
Cut-off Date; (ii) prepayments of principal collected on or before the Cut-off
Date and (iii) with respect to those Mortgage Loans that were closed in November
2005 or December 2005 but have their first Due Date in January or February of
2006, any interest amounts relating to the period prior to the Cut-off Date).
The transfer of the Mortgage Loans and the related rights and property
accomplished hereby is absolute and, notwithstanding Section 11.07, is intended
by the parties to constitute a sale. In connection with the assignment to the
Trustee of Sections 1, 2, 3, 4, 5, 6(a) (excluding clause (viii) of Section
6(a)), 6(c), 6(d), 6(e), 6(f), 6(g), 10, 11, 13, 14, 15, 17, 18 and 19 of each
of the Mortgage Loan Purchase Agreements, it is intended that the Trustee get
the benefit of Sections 10, 11 and 14 thereof in connection with any exercise of
rights under the assigned Sections, and the Depositor shall use its best efforts
to make available to the Trustee the benefits of Sections 10, 11 and 14 in
connection therewith.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each of the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned, with copies to the applicable Master Servicer. If the
applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to
any Mortgage Loan, the original Mortgage Note, the delivery requirements of the
applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be
deemed to have been satisfied; provided, such Mortgage Loan Seller shall deliver
a copy or duplicate original of such Mortgage Note, together with an affidavit
certifying that the original thereof has been lost or destroyed and indemnifying
the Trustee. If the applicable Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Mortgage Loan, any of the documents and/or instruments
referred to in clauses (ii), (iv), (viii), (xi) and (xii) of the definition of
"Mortgage File," with evidence of filing or recording thereon (if intended to be
recorded or filed), solely because of a delay caused by the public filing or
recording office where such document or instrument has been delivered for filing
or recordation, the delivery requirements of the applicable Mortgage Loan
Purchase Agreement and this Section 2.01(b) shall be deemed to have been
satisfied on a provisional basis as of the Closing Date as to such non-delivered
document or instrument, and such non-delivered document or instrument shall be
deemed to have been included in the Mortgage File, if a duplicate original or a
photocopy of such non-delivered document or instrument (certified by the
applicable public filing or recording office, the applicable title insurance
company or the applicable Mortgage Loan Seller to be a true and complete copy of
the original thereof submitted for filing or recording) is delivered to the
Trustee or a Custodian appointed thereby on or before the Closing Date, and
either the original of such non-delivered document or instrument, or a photocopy
thereof (certified by the appropriate county recorder's office, in the case of
the documents and/or instruments referred to in clause (ii) of the definition of
"Mortgage File," to be a true and complete copy of the original thereof
submitted for recording), with evidence of filing or recording thereon, is
delivered to the Trustee or such Custodian within 180 days of the Closing Date
(or within such longer period, not to exceed 18 months, after the Closing Date
as the Trustee may consent to, which consent shall not be unreasonably withheld
so long as the applicable Mortgage Loan Seller is, as certified in writing to
the Trustee no less often than every 90 days, attempting in good faith to obtain
from the appropriate public filing office or county recorder's office such
original or photocopy). If the applicable Mortgage Loan Seller cannot deliver,
or cause to be delivered, as to any Mortgage Loan, any of the documents and/or
instruments referred to in clauses (ii), (iv), (viii), (xi) and (xii) of the
definition of "Mortgage File," with evidence of filing or recording thereon, for
any other reason, including, without limitation, that such non-delivered
document or instrument has been lost or destroyed, the delivery requirements of
the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall
be deemed to have been satisfied as to such non-delivered document or
instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, if a photocopy of such non-delivered
document or instrument (with evidence of filing or recording thereon and
certified in the case of the documents and/or instruments referred to in clause
(ii) of the definition of "Mortgage File" by the appropriate county recorder's
office to be a true and complete copy of the original thereof submitted for
recording) is delivered to the Trustee or a Custodian appointed thereby on or
before the Closing Date. Neither the Trustee nor any Custodian shall in any way
be liable for any failure by any Mortgage Loan Seller or the Depositor to comply
with the delivery requirements of the related Mortgage Loan Purchase Agreement
and this Section 2.01(b). If, on the Closing Date as to any Mortgage Loan, the
applicable Mortgage Loan Seller cannot deliver in complete and recordable form
(or form suitable for filing or recording, if applicable) any one of the
assignments in favor of the Trustee referred to in clause (iii), (v) (to the
extent not already assigned pursuant to clause (iii)) or (xi) of the definition
of "Mortgage File" solely because of the unavailability of filing or recording
information as to any existing document or instrument and/or because such
assignments are assignments in blank and have not been completed in favor of the
Trustee as specified in the related clause(s) of the definition of "Mortgage
File," such Mortgage Loan Seller may provisionally satisfy the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b) by delivering with respect to such Mortgage Loan on the Closing Date an
omnibus assignment of such Mortgage Loan substantially in the form of Exhibit H;
provided, that all required original assignments with respect to such Mortgage
Loan, in fully complete and recordable form (or form suitable for filing or
recording, if applicable), are delivered to the Trustee or its Custodian within
180 days after the Closing Date (or within such longer period, not to exceed 18
months, as the Trustee in its discretion may consent to, which consent shall not
be unreasonably withheld so long as the applicable Mortgage Loan Seller is, as
certified in writing to the Trustee no less often than every 90 days, attempting
in good faith to obtain from the appropriate public filing office or county
recorder's office the applicable filing or recording information as to the
related document or instrument). Notwithstanding anything herein to the
contrary, with respect to letters of credit, the applicable Mortgage Loan Seller
shall deliver to the applicable Master Servicer and the applicable Master
Servicer shall hold the original (or copy, if such original has been submitted
by the applicable Mortgage Loan Seller to the issuing bank to effect an
assignment or amendment of such letter of credit (changing the beneficiary
thereof to the Trust (in care of the applicable Master Servicer)) that may be
required in order for the applicable Master Servicer to draw on such letter of
credit on behalf of the Trust in accordance with the applicable terms thereof
and/or of the related Mortgage Loan documents), and the applicable Mortgage Loan
Seller shall be deemed to have satisfied the delivery requirements of the
related Mortgage Loan Purchase Agreement and this Section 2.01(b) by delivering
with respect to any letter of credit a copy thereof to the Trustee together with
an officer's certificate of the applicable Mortgage Loan Seller certifying that
such document has been delivered to the applicable Master Servicer or an
officer's certificate from the applicable Master Servicer certifying that it
holds the letter(s) of credit pursuant to this Section 2.01(b), one of which
shall be delivered to the Trustee on the Closing Date. If a letter of credit
referred to in the previous sentence is not in a form that would allow the
applicable Master Servicer to draw on such letter of credit on behalf of the
Trust in accordance with the applicable terms thereof and/or of the related
Mortgage Loan documents, the applicable Mortgage Loan Seller shall deliver the
appropriate assignment or amendment documents (or copies of such assignment or
amendment documents if the related Mortgage Loan Seller has submitted the
originals to the related issuer of such letter of credit for processing) to the
applicable Master Servicer within 30 days of the Closing Date. If not otherwise
paid by the related Mortgagor, the applicable Mortgage Loan Seller shall pay any
costs of assignment or amendment of such letter(s) of credit required in order
for the applicable Master Servicer to draw on such letter(s) of credit on behalf
of the Trust and shall cooperate with the reasonable requests of the applicable
Master Servicer or the Special Servicer, as applicable, in connection with
effectuating a draw under any such letter of credit prior to the date such
letter of credit is assigned or amended in order that it may be drawn by the
applicable Master Servicer on behalf of the Trust.
(c) Pursuant to each Mortgage Loan Purchase Agreement, the related
Mortgage Loan Seller is required at its sole cost and expense, to itself, or to
engage a third party to, put each assignment of Mortgage, each assignment of
Assignment of Leases and each assignment of each UCC Financing Statement
("Assignments" and, individually, "Assignment") relating to the Mortgage Loans
conveyed by it under the applicable Mortgage Loan Purchase Agreement in proper
form for filing or recording, as applicable, and to submit such Assignments for
filing or recording, as the case may be, in the applicable public filing or
recording office, and on the Closing Date, such Mortgage Loan Seller may deliver
one (1) omnibus assignment for all such Mortgage Loans to the Trustee or its
Custodian as provided in Section 2.01(b). Except under the circumstances
provided for in the last sentence of this subsection (c), the related Mortgage
Loan Seller will itself, or a third party at such Mortgage Loan Seller's expense
will, promptly (and in any event within 120 days after the later of the Closing
Date and the Trustee's actual receipt of the related documents and the necessary
recording and filing information) cause to be submitted for recording or filing,
as the case may be, in the appropriate public office for real property records
or UCC Financing Statements, as appropriate, each assignment to the Trustee
referred to in clauses (iii) and (v) of the definition of "Mortgage File" and
each UCC assignment to the Trustee referred to in clause (xi) of the definition
of "Mortgage File." Each such Assignment submitted for recording shall reflect
that it should be returned by the public recording office to the Trustee or its
designee following recording (or to the agent of the Mortgage Loan Seller who
will then be responsible for delivery of the same to the Trustee or its
designee), and each such UCC assignment submitted for recording or filing shall
reflect that the file copy thereof should be returned to the Trustee or its
designee following recording or filing (or to the agent of the Mortgage Loan
Seller who will then be responsible for delivery of the same to the Trustee or
its designee). If any such document or instrument is determined to be incomplete
or not to meet the recording or filing requirements of the jurisdiction in which
it is to be recorded or filed, or is lost by the public office or returned
unrecorded or unfiled, as the case may be, because of a defect therein, on or
about 180 days after the Closing Date, the related Mortgage Loan Seller or its
designee shall prepare, at its own expense, a substitute therefor or cure such
defect, as the case may be, and thereafter the Mortgage Loan Seller or its
designee shall, at the expense of the related Mortgage Loan Seller, upon receipt
thereof cause the same to be duly recorded or filed, as appropriate. If, by the
first anniversary of the Closing Date, the Trustee has not received confirmation
of the recording or filing as the case may be, of any such Assignment, it shall
so advise the related Mortgage Loan Seller who may then pursue such confirmation
itself or request that the Trustee pursue such confirmation at the related
Mortgage Loan Seller's expense, and upon such a request and provision for
payment of such expenses satisfactory to the Trustee, the Trustee, at the
expense of the applicable Mortgage Loan Seller, shall cause a search of the land
records of each applicable jurisdiction or of the records of the offices of the
applicable Secretary of State for confirmation that the Assignment appears in
such records and retain a copy of such confirmation in the related Mortgage
File. In the event that confirmation of the recording or filing of an Assignment
cannot be obtained, the Trustee or the related Mortgage Loan Seller, as
applicable, shall promptly inform the other and the Trustee shall provide such
Mortgage Loan Seller with a copy of the Assignment and request the preparation
of a new Assignment. The related Mortgage Loan Seller shall pay the expenses for
the preparation of replacement Assignments for any Assignments which, having
been properly submitted for filing or recording to the appropriate governmental
office by the Trustee, fail to appear of record and must be resubmitted.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee referred to in clause (iii) or (v) of the definition
of "Mortgage File," or to file any UCC-3 to the Trustee referred to in clause
(xi) of the definition of "Mortgage File," in those jurisdictions where, in the
written opinion of local counsel (which opinion shall be an expense of the
related Mortgage Loan Seller) acceptable to the Depositor and the Trustee, such
recordation and/or filing is not required to protect the Trustee's interest in
the related Mortgage Loans against sale, further assignment, satisfaction or
discharge by the related Mortgage Loan Seller, the applicable Master Servicer,
the Special Servicer, any Sub-Servicer or the Depositor.
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Mortgage Loans (including
financial statements, operating statements and any other information provided by
the respective Mortgagor from time to time, but excluding the applicable
Mortgage Loan Seller's internal communications (including such communications
between the Mortgage Loan Seller and its Affiliates) and underwriting analysis
(including documents prepared by the applicable Mortgage Loan Seller or any of
its Affiliates for such purposes), draft documents, attorney-client
communications which are privileged communications or constitute legal or other
due diligence analyses and credit underwriting or due diligence analyses or
data) that (i) are not required to be a part of a Mortgage File in accordance
with the definition thereof and (ii) are reasonably necessary for the servicing
of each such Mortgage Loan, together with copies of all documents in each
Mortgage File, shall be delivered by the Depositor or the applicable Mortgage
Loan Seller to the applicable Master Servicer within 5 Business Days after the
Closing Date and shall be held by the applicable Master Servicer on behalf of
the Trustee in trust for the benefit of the Certificateholders (and as holder of
the Class A-2FL Regular Interest and the Uncertificated Lower-Tier Interests)
and, if applicable, on behalf of the related Companion Holder. Such documents
and records shall be any documents and records (with the exception of any items
excluded under the immediately preceding sentence) that would otherwise be a
part of the Servicing File.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the applicable Master
Servicer, on or before the Closing Date, a fully executed original counterpart
of each of the Mortgage Loan Purchase Agreements, as in full force and effect,
without amendment or modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers cause all funds on
deposit in escrow accounts maintained with respect to the Mortgage Loans to be
transferred by such Mortgage Loan Seller, whether such accounts are held in the
name of the applicable Mortgage Loan Seller or any other name to be transferred
to the applicable Master Servicer (or a Sub-Servicer) for deposit into Servicing
Accounts.
(g) The Trustee hereby acknowledges the receipt by it of the Closing
Date Deposit Amount. The Trustee shall hold such Closing Date Deposit Amount in
the Distribution Account and shall include the Closing Date Deposit Amount in
the Available Distribution Amount for the initial Distribution Date. The Closing
Date Deposit Amount shall remain uninvested.
Section 2.02 Acceptance by Trustee. (a) The Trustee, by the
execution and delivery of this Agreement (1) acknowledges receipt by it or a
Custodian on its behalf, subject to the provisions of Section 2.01 and the
further review provided for in this Section 2.02 and to any exceptions noted on
the Trustee Exception Report, in good faith and without notice of any adverse
claim, of the applicable documents specified in clauses (i), (ii), (ix), (xv),
(xvi) (or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate of the related Mortgage Loan Seller or the applicable
Master Servicer as contemplated by the third to the last sentence of Section
2.01(b) hereof) and (xxiii) of the definition of "Mortgage File" with respect to
each Mortgage Loan, of a fully executed original counterpart of each of the
Mortgage Loan Purchase Agreements, and of all other assets included in the Trust
Fund and (2) declares (a) that it or a Custodian on its behalf holds and will
hold such documents and the other documents delivered or caused to be delivered
by the Mortgage Loan Sellers that constitute the Mortgage Files, and (b) that it
holds and will hold such other assets included in the Trust Fund, in trust for
the exclusive use and benefit of all present and future Certificateholders and,
with respect to any original document in the Mortgage File for each Loan Pair or
the Houston Galleria Whole Loan, for any present or future Companion Holder or
the Houston Galleria Companion Loanholders (and for the benefit of the Trustee
as holder of the Class A-2FL Regular Interest and the Uncertificated Lower-Tier
Interests), as applicable. If any Mortgage Loan Seller is unable to deliver or
cause the delivery of any original Mortgage Note, such Mortgage Loan Seller may
deliver a copy of such Mortgage Note, together with a signed lost note affidavit
and appropriate indemnity and shall thereby be deemed to have satisfied the
document delivery requirements of Sections 2.01 and 2.02.
(b) Within 90 days of the Closing Date, the Trustee or a Custodian
on its behalf, shall review the Mortgage Loan documents delivered or caused to
be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and,
promptly following such review (but in no event later than 90 days after the
Closing Date), the Trustee shall, in the form attached as Exhibit W, certify in
writing to each of the Rating Agencies, the Depositor, the Master Servicers, the
Special Servicer, the Directing Certificateholder and the Mortgage Loan Sellers
that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Mortgage Loan paid in full) and except as specifically identified in any
exception report annexed to such writing (the "Trustee Exception Report"), (i)
all documents specified in clauses (i) through (v), (ix) through (xii) and (xvi)
(or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate as contemplated by the third to last sentence of Section
2.01(b) hereof), if any, of the definition of "Mortgage File," as applicable,
are in its possession, (ii) the foregoing documents delivered or caused to be
delivered by the Mortgage Loan Sellers have been reviewed by it or by a
Custodian on its behalf and appear regular on their face and appear to be
executed and to relate to such Mortgage Loans, and (iii) based on such
examination and only as to the foregoing documents, the information set forth in
the Mortgage Loan Schedule with respect to the items specified in clauses (iv),
(vi) and (viii)(c) in the definition of "Mortgage Loan Schedule" is correct.
With respect to each Mortgage Loan listed on the Trustee Exception Report, the
Trustee shall specifically identify such Mortgage Loan together with the nature
of such exception (in the form reasonably acceptable to the Trustee and the
related Mortgage Loan Seller and separating items required to be in the Mortgage
File but never delivered from items which were delivered by the related Mortgage
Loan Seller but are out for filing or recording and have not been returned by
the filing office or the recorder's office).
(c) The Trustee, or a Custodian on its behalf, shall review the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall, in the
form attached as Exhibit W, certify in writing to each of the Depositor, the
Master Servicers, the Special Servicer, the Directing Certificateholder and the
applicable Mortgage Loan Seller that, as to each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan as to which a Liquidation
Event has occurred) or any Mortgage Loan specifically identified in any
exception report annexed to such writing (i) all documents specified in clauses
(i) through (v), (ix) through (xii) and (xvi) (or, with respect to clause (xvi),
a copy of such letter of credit and an officer's certificate as contemplated by
the third to last sentence of Section 2.01(b) hereof), if any, of the definition
of "Mortgage File," as applicable, are in its possession, (ii) the foregoing
documents delivered or caused to be delivered by the applicable Mortgage Loan
Seller have been reviewed by it or by a Custodian on its behalf and appear
regular on their face and appear to be executed and relate to such Mortgage
Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (iv), (vi) and (viii)(c) in the definition of
"Mortgage Loan Schedule" is correct.
(d) Notwithstanding anything contained in this Section 2.02 and
Section 2.03(b) to the contrary, in the case of a deficiency in any of the
documents specified in clauses (ii) through (v), (viii), (ix), (xi) and (xii) in
the definition of "Mortgage File," resulting solely from a delay in the return
of the related documents from the applicable filing or recording office, which
deficiency (i) is continuing for (a) in the case of any Mortgage Loan that is
not a Specially Serviced Mortgage Loan, more than eighteen (18) months following
the Closing Date or (b) in the case of any Specially Serviced Mortgage Loan,
more than thirty (30) days following a Servicing Transfer Event, and (ii)
impairs or prohibits in any material way the applicable Master Servicer's or
Special Servicer's ability to act upon, or enforce, any of the Trust Fund's
rights and remedies under the related Mortgage Loan, or Specially Serviced
Mortgage Loan, as applicable, at the time the applicable Master Servicer or
Special Servicer attempts to act upon, or enforce, any such right or remedy, the
Directing Certificateholder, in its sole judgment, may permit the related
Mortgage Loan Seller, in lieu of repurchasing or substituting for the related
Mortgage Loan, to deposit with the Trustee an amount, to be held in trust in a
segregated Eligible Account, equal to 25% of the Stated Principal Balance of the
related Mortgage Loan (in the alternative, the related Mortgage Loan Seller may
deliver to the Trustee a letter of credit in such amount). Such funds shall be
treated as an "outside reserve fund" under the REMIC Provisions, which, together
with any reimbursement from the Lower Tier REMIC, is beneficially owned by the
related Mortgage Loan Seller for federal income tax purposes, which Mortgage
Loan Seller shall remain liable for any taxes payable on income or gain with
respect thereto. Such funds or letter of credit, as applicable, shall be held by
the Trustee (i) until the date on which the Trustee determines that such
document deficiency has been cured or the related Mortgage Loan is no longer
part of the Trust Fund, at which time the Trustee shall return such funds (or
letter of credit) to the related Mortgage Loan Seller, or (ii) if the related
Mortgage Loan is or becomes a Specially Serviced Mortgage Loan, until the date
on which the Special Servicer certifies to the Trustee that it has determined in
the exercise of its reasonable judgment that the document with respect to which
such document deficiency exists is required in connection with an imminent
enforcement of the mortgagee's rights or remedies under the related Mortgage
Loan, defending any claim asserted by any Mortgagor or third party with respect
to the related Mortgage Loan, establishing the validity or priority of any lien
on collateral securing the Mortgage Loan or for any immediate significant
servicing obligation, at which time the related Mortgage Loan Seller shall be
required to repurchase or substitute for the related Mortgage Loan in accordance
with the terms and conditions of Section 2.03(b) or Section 6 of the related
Mortgage Loan Purchase Agreement; provided, however, that such Mortgage Loan
Seller shall not be required to repurchase the Mortgage Loan for a period of
ninety (90) days after receipt of a notice to repurchase (together with any
applicable extension period) if it is attempting to recover the document from
the applicable filing or recording office and provides an officer's certificate
setting forth what actions such Mortgage Loan Seller is pursuing in connection
with such recovery. In the event of a repurchase or substitution, upon such
date, the Trustee shall deposit, such funds, or shall draw upon the letter of
credit and deposit the proceeds of such draw, into the applicable Distribution
Account to be applied to the Purchase Price (or the Substitution Shortfall
Amount, if applicable, in which event, the amount of such funds or proceeds
which exceed the Substitution Shortfall Amount shall be returned to the Mortgage
Loan Seller) in accordance with Section 2.03(b). All such funds deposited with
(and to be held in Trust by) the Trustee and all such funds deposited in a
Distribution Account shall be invested in Permitted Investments, at the
direction and for the benefit of the related Mortgage Loan Seller.
(e) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (vi), (vii), (viii), (x) and (xii) through (xxii)
of the definition of "Mortgage File" exist or are required to be delivered by
the Depositor, the Mortgage Loan Sellers or any other Person (unless identified
on the Mortgage Loan Checklist) or (ii) to inspect, review or examine any of the
documents, instruments, certificates or other papers relating to the Mortgage
Loans delivered to it to determine that the same are genuine, enforceable,
sufficient to perfect and maintain the perfection of a security interest or
appropriate for the represented purpose or that they are other than what they
purport to be on their face and, with respect to the documents specified in
clause (ix), whether the insurance is effective as of the date of the
recordation of the related Mortgage, whether all endorsements or riders issued
are included in the file or if the policy has not been issued whether any
acceptable replacement document has been dated the date of the related Mortgage
Loan funding. Further, with respect to the UCC financing statements referenced
in the Mortgage File, absent actual knowledge to the contrary or copies of UCC
financing statements delivered to the Trustee as part of the Mortgage File
indicating otherwise, the Trustee may assume, for the purposes of the filings
and the certification to be delivered in accordance with this Section 2.02 that
the related Mortgage File should include one state level UCC financing statement
filing for each Mortgagor (except to the extent multiple Mortgagors which are
located in the same state are named as debtors in the same UCC financing
statement filing), or if the Trustee has received notice that a particular UCC
financing statement was filed as a fixture filing, that the related Mortgage
File should include only a local UCC financing statement filing for each
Mortgaged Property (or with respect to any Mortgage Loan that has two or more
Mortgagors, in addition, for each Mortgagor, except to the extent multiple
Mortgagors are named as debtors in the same UCC financing statement filing). The
assignments of the UCC financing statements to be assigned to the Trust will be
delivered on the new national forms (or on such other form as may be acceptable
for filing or recording in the applicable jurisdiction) and in recordable format
suitable for filing or recording, as applicable, and will be filed or recorded
in the jurisdiction(s) where such UCC financing statements were originally filed
or recorded, as indicated in the documents provided, and in accordance with then
current laws.
(f) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File (1) not to have been properly executed or
(2) subject to Section 2.01(b) and (c), not to have been delivered, (3) to
contain information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule or (4) to be
defective on its face (each, a "Defect" in the related Mortgage File), the
Trustee shall promptly so notify the Depositor, the applicable Master Servicer,
the Special Servicer, the Directing Certificateholder and the applicable
Mortgage Loan Seller (and in no event later than 90 days after the Closing Date
and every calendar quarter thereafter, commencing with the quarter ending March
31, 2006) until December 31, 2007, by providing a Trustee Exception Report
setting forth for each affected Mortgage Loan, with particularity, the nature of
such Defect (in a form reasonably acceptable to the Trustee and such Mortgage
Loan Seller and separating items required to be in the Mortgage File but never
delivered from items which were delivered by such Mortgage Loan Seller but are
out for recording or filing and have not been returned by the recorder's office
or filing office).
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans
for Defects in Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans to the Trust and the Mortgage
Loans have been validly transferred to the Trust.
(b) If any Certificateholder, the applicable Master Servicer, the
Special Servicer or the Trustee discovers (without implying any duty of such
person to make, or to attempt to make, such a discovery) or receives notice of a
Defect in any Mortgage File or a breach of any representation or warranty with
respect to a Mortgage Loan set forth in, or required to be made with respect to
a Mortgage Loan by the applicable Mortgage Loan Seller pursuant to, the related
Mortgage Loan Purchase Agreement (a "Breach"), which Defect or Breach, as the
case may be, materially and adversely affects the value of such Mortgage Loan,
the value of the related Mortgaged Property or the interests of the Trustee or
any Certificateholder therein, such Certificateholder, the applicable Master
Servicer, the Special Servicer, the Trustee or the Directing Certificateholder,
as applicable, shall give prompt written notice of such Defect or Breach, as the
case may be, to the Depositor, the applicable Master Servicer, the Special
Servicer, the applicable Mortgage Loan Seller, the Trustee and the Directing
Certificateholder (and in the case of the Houston Galleria Loan, the Houston
Galleria Controlling Holder) and shall request in writing that the applicable
Mortgage Loan Seller, not later than 90 days after the earlier of (i) the
applicable Mortgage Loan Seller's receipt of such notice or (ii) in the case of
a Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code, but without regard to the
rule of Treasury Regulations Section 1.860G-2(f)(2) that causes a defective
mortgage loan to be treated as a qualified mortgage, the applicable Mortgage
Loan Seller's discovery of such Defect or Breach (the "Initial Cure Period")
that materially and adversely affects the value of any Mortgage Loan, the value
of the related Mortgaged Property or the interests of the Trustee or any
Certificateholder therein, (i) cure such Defect or Breach, as the case may be,
in all material respects, (ii) repurchase the affected Mortgage Loan or REO Loan
at the applicable Purchase Price and in conformity with the applicable Mortgage
Loan Purchase Agreement and this Agreement or (iii) substitute a Qualified
Substitute Mortgage Loan (other than with respect to the Houston Galleria Loan
and the Houston Galleria Trust Subordinate Companion Loan, for which no
substitution will be permitted) for such affected Mortgage Loan or REO Loan
(provided, that in no event shall any such substitution occur later than the
second anniversary of the Closing Date) and pay the applicable Master Servicer
for deposit into the related Certificate Account, any Substitution Shortfall
Amount in connection therewith and in conformity with the applicable Mortgage
Loan Purchase Agreement and this Agreement; provided, however, that if such
Breach or Defect is capable of being cured but is not cured within the Initial
Cure Period, and the applicable Mortgage Loan Seller has commenced and is
diligently proceeding with the cure of such Breach or Defect within the Initial
Cure Period, the applicable Mortgage Loan Seller shall have an additional 90
days commencing immediately upon the expiration of the Initial Cure Period (such
additional 90 day period, the "Extended Cure Period") to complete such cure (or,
failing such cure, to repurchase the related Mortgage Loan or REO Loan or
substitute a Qualified Substitute Mortgage Loan) (other than with respect to the
Houston Galleria Loan and the Houston Galleria Trust Subordinate Companion Loan,
for which no substitution will be permitted)) and provided, further, that with
respect to such Extended Cure Period the applicable Mortgage Loan Seller shall
have delivered an officer's certificate to the Trustee (who shall promptly
deliver a copy of such officer's certificate to the Rating Agencies, the
applicable Master Servicer, the Special Servicer and the Directing
Certificateholder), setting forth the reason such Breach or Defect is not
capable of being cured within the Initial Cure Period and what actions the
applicable Mortgage Loan Seller is pursuing in connection with the cure thereof
and stating that the applicable Mortgage Loan Seller anticipates that such
Breach or Defect will be cured within the Extended Cure Period. Notwithstanding
the foregoing, any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code, but
without regard to the rule of Treasury Regulations Section 1.860G-2(f)(2) that
causes a defective mortgage loan to be treated as a qualified mortgage) shall be
deemed to materially and adversely affect the interests of Certificateholders
therein, and such Mortgage Loan shall be repurchased or substituted for without
regard to the extended cure period described in the preceding sentence. If the
affected Mortgage Loan is to be repurchased, the funds in the amount of the
Purchase Price remitted by the applicable Mortgage Loan Seller are to be
deposited by wire transfer to the applicable Certificate Account. If any Breach
pertains to a representation or warranty that the related Mortgage Loan
documents or any particular Mortgage Loan document requires the related
Mortgagor to bear the costs and expenses associated with any particular action
or matter under such Mortgage Loan document(s), then the related Mortgage Loan
Seller shall cure such Breach within the applicable cure period (as the same may
be extended) by reimbursing the Trust Fund (by wire transfer of immediately
available funds) the reasonable amount of any such costs and expenses incurred
by the applicable Master Servicer, the Special Servicer, the Trustee or the
Trust Fund that are the basis of such Breach and have not been reimbursed by the
related Mortgagor; provided, however, that in the event any such costs and
expenses exceed $10,000, the related Mortgage Loan Seller shall have the option
to either repurchase or substitute for the related Mortgage Loan as provided
above or pay such costs and expenses. Except as provided in the proviso to the
immediately preceding sentence, the related Mortgage Loan Seller shall remit the
amount of such costs and expenses and upon its making such remittance, the
related Mortgage Loan Seller shall be deemed to have cured such Breach in all
respects. To the extent any fees or expenses that are the subject of a cure by
the related Mortgage Loan Seller are subsequently obtained from the related
Mortgagor, the portion of the cure payment made by the related Mortgage Loan
Seller equal to such fees or expenses obtained from the Mortgagor shall be
returned to the related Mortgage Loan Seller pursuant to Section 2.03(f) below.
Monthly Payments due with respect to each Qualified Substitute Mortgage Loan (if
any) after the related Due Date in the month of substitution, and Monthly
Payments due with respect to each Mortgage Loan being repurchased or replaced
after the related Cut-off Date and received by the applicable Master Servicer or
the Special Servicer on behalf of the Trust on or prior to the related date of
repurchase or substitution, shall be part of the Trust Fund. Monthly Payments
due with respect to each Qualified Substitute Mortgage Loan (if any) on or prior
to the related Due Date in the month of substitution, and Monthly Payments due
with respect to each Mortgage Loan being repurchased or replaced and received by
the applicable Master Servicer or the Special Servicer on behalf of the Trust
after the related date of repurchase or substitution, shall not be part of the
Trust Fund and are to be remitted by the applicable Master Servicer to the
Mortgage Loan Seller effecting the related repurchase or substitution promptly
following receipt. Notwithstanding anything to the contrary contained in this
Agreement or the related Mortgage Loan Purchase Agreement, no delay in either
the discovery of a Defect or Breach or delay on the part of any party to this
Agreement in providing notice of such Defect or Breach shall relieve the
Mortgage Loan Seller of its obligation to repurchase if it is otherwise required
to do so under the related Mortgage Loan Purchase Agreement and/or this
Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a Defect and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interest of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage that appears to be regular on its face, unless there is included in the
Mortgage File a certified copy of the Mortgage and a certificate stating that
the original signed Mortgage was sent for filing or recordation, as applicable;
(c) the absence from the Mortgage File of the item called for by paragraph (ix)
of the definition of Mortgage File; (d) the absence from the Mortgage File of
any intervening assignments required to create a complete chain of assignment to
the Trustee on behalf of the Trust, unless there is included in the Mortgage
File a certified copy of each such missing intervening assignment and a
certificate stating that the original intervening assignment was sent for filing
or recordation, as applicable; (e) the absence from the Mortgage File of any
required letter of credit; or (f) with respect to any leasehold mortgage loan,
the absence from the related Mortgage File of a copy (or an original, if
available) of the related Ground Lease; provided, however, that no Defect
(except the Defects previously described in clauses (a) through (f)) shall be
considered to materially and adversely affect the value of the related Mortgage
Loan, the value of the related Mortgaged Property or the interests of the
Trustee or Certificateholders unless the document with respect to which the
Defect exists is required in connection with an imminent enforcement of the
mortgagee's rights or remedies under the related Mortgage Loan, defending any
claim asserted by any Mortgagor or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien on any collateral
securing the Mortgage Loan or for any immediate significant servicing
obligation. Notwithstanding the foregoing, the delivery of executed escrow
instructions or other commitment to issue a lender's title insurance policy, as
provided in clause (ix) of the definition of Mortgage File herein, in lieu of
the delivery of the actual policy of lender's title insurance, shall not be
considered a Defect or Breach with respect to any Mortgage File if such actual
policy is delivered to the Trustee or a Custodian on its behalf not later than
18 months following the Closing Date.
(c) In connection with any repurchase of, or substitution of a
Qualified Substitute Mortgage Loan for, a Mortgage Loan contemplated by this
Section 2.03, the Trustee, the applicable Master Servicer and the Special
Servicer shall each tender to the applicable Mortgage Loan Seller, upon delivery
to each of the Trustee, the applicable Master Servicer and the Special Servicer
of a trust receipt executed by the applicable Mortgage Loan Seller evidencing
such repurchase or substitution, all portions of the Mortgage File and other
documents pertaining to such Mortgage Loan possessed by each of the Trustee, the
applicable Master Servicer and the Special Servicer, and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to the
Trustee shall be endorsed or assigned, as the case may be, to the applicable
Mortgage Loan Seller, in the same manner as provided in Section 6 of the related
Mortgage Loan Purchase Agreement, so as to vest in such Mortgage Loan Seller,
the legal and beneficial ownership of such repurchased or substituted for
Mortgage Loan (including property acquired in respect thereof or proceeds of any
insurance policy with respect thereto) and the related Mortgage Loan documents.
(d) Section 6(e) of each applicable Mortgage Loan Purchase Agreement
provides the sole remedy available to the Certificateholders (subject to the
limitations on the rights of the Certificateholders under this Agreement), or
the Trustee on behalf of the Certificateholders, with respect to any Defect in a
Mortgage File or any Breach of any representation or warranty with respect to a
Mortgage Loan set forth in or required to be made pursuant to Section 6 of such
Mortgage Loan Purchase Agreement.
(e) The applicable Master Servicer or Special Servicer (in the case
of Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders and the Trustee (as holder of the Class A-2FL Regular
Interest and the Uncertificated Lower-Tier Interests), enforce the obligations
of the applicable Mortgage Loan Seller under the applicable Mortgage Loan
Purchase Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, if any shall be carried out in such form, to such extent
and at such time as the applicable Master Servicer or the Special Servicer, as
the case may be, would require were it, in its individual capacity, the owner of
the affected Mortgage Loan(s). Any costs incurred by the applicable Master
Servicer and the Special Servicer with respect to the enforcement of the
obligations of the applicable Mortgage Loan Seller, under the applicable
Mortgage Loan Purchase Agreement shall be deemed to be Servicing Advances to the
extent not otherwise provided herein. The applicable Master Servicer and the
Special Servicer, as the case may be, shall be reimbursed for the reasonable
costs of such enforcement: first, from a specific recovery, if any, of costs,
expenses or attorneys' fees against the applicable Mortgage Loan Seller; second,
pursuant to Section 3.05(a)(vii) herein out of the related Purchase Price, to
the extent that such expenses are a specific component thereof; and third, if at
the conclusion of such enforcement action it is determined that the amounts
described in clauses first and second are insufficient, then pursuant to Section
3.05(a)(viii) herein out of general collections on the Mortgage Loans on deposit
in the Certificate Account.
(f) If a Mortgage Loan Seller incurs any expense in connection with
the curing of a Breach, which also constitutes a default under the related
Mortgage Loan and is reimbursable thereunder, such Mortgage Loan Seller shall
have a right, and shall be subrogated to the rights of the Trustee and the Trust
Fund under the Mortgage Loan, to recover the amount of such expenses from the
related Mortgagor; provided, however, that such Mortgage Loan Seller's rights
pursuant to this Section 2.03(f) shall be junior, subject and subordinate to the
rights of the Trustee, the Trust Fund, the applicable Master Servicer and the
Special Servicer to recover amounts owed by the related Mortgagor under the
terms of such Mortgage Loan, including, without limitation, the rights to
recover unreimbursed Advances, accrued and unpaid interest on Advances at the
Reimbursement Rate and unpaid or unreimbursed expenses of the Trustee, the Trust
Fund, the Master Servicer or the Special Servicer allocable to such Mortgage
Loan. The applicable Master Servicer or, with respect to a Specially Serviced
Mortgage Loan, the Special Servicer, shall use reasonable efforts to recover
such expenses for such Mortgage Loan Seller to the extent consistent with the
Servicing Standards, but taking into account the subordinate nature of the
reimbursement to the Mortgage Loan Seller; provided, however, that the
applicable Master Servicer or, with respect to a Specially Serviced Mortgage
Loan, the Special Servicer, determines in the exercise of its sole discretion
consistent with the Servicing Standards that such actions by it will not impair
the applicable Master Servicer's and/or the Special Servicer's collection or
recovery of principal, interest and other sums due with respect to the related
Mortgage Loan which would otherwise be payable to the applicable Master
Servicer, the Special Servicer, the Trustee and the Certificateholders pursuant
to the terms of this Agreement; provided further, that the applicable Master
Servicer or, with respect to a Specially Serviced Mortgage Loan, the Special
Servicer may waive the collection of amounts due on behalf of the Mortgage Loan
Seller in its sole discretion in accordance with the Servicing Standards.
(g) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in this Section, (ii) such Mortgage Loan
is a Crossed Loan, and (iii) the applicable Defect or Breach does not constitute
a Defect or Breach, as the case may be, as to any other Crossed Loan in such
Crossed Group (without regard to this paragraph), then the applicable Defect or
Breach, as the case may be, will be deemed to constitute a Defect or Breach, as
the case may be, as to any other Crossed Loan in the Crossed Group for purposes
of this paragraph, and the related Mortgage Loan Seller will be required to
repurchase or substitute for such other Crossed Loan(s) in the related Crossed
Group as provided in Section 2.03(b) unless such other Crossed Loans satisfy the
Crossed Loan Repurchase Criteria and the Mortgage Loan affected by the
applicable Breach or Defect and Qualified Substitute Mortgage Loan, if any,
satisfy all other criteria for substitution and repurchase of Mortgage Loans set
forth herein. In the event that the remaining Crossed Loans in such Crossed
Group satisfy the aforementioned criteria, the applicable Mortgage Loan Seller
may elect either to repurchase or substitute for only the affected Crossed Loan
as to which the related Breach or Defect exists or to repurchase or substitute
for all of the Crossed Loans in the related Crossed Group. Any reserve or other
cash collateral or letters of credit securing the Crossed Loans shall be
allocated between such Mortgage Loans in accordance with the related Mortgage
Loan documents or otherwise on a pro rata basis based upon their outstanding
Stated Principal Balances. Except as provided in Section 2.03(h), all other
terms of the Mortgage Loans shall remain in full force and effect without any
modification thereof.
(h) With respect to any Crossed Loan, to the extent that the
applicable Mortgage Loan Seller is required to repurchase or substitute for such
Mortgage Loan in the manner prescribed in Section 2.03(g) while the Trustee
continues to hold any other Crossed Loans in the related Crossed Group, the
applicable Mortgage Loan Seller and the Trustee, as assignee of the Depositor,
will, as set forth in the related Mortgage Loan Purchase Agreement, forbear from
enforcing any remedies against the other's Primary Collateral but each will be
permitted to exercise remedies against the Primary Collateral securing its
respective Mortgage Loans, including with respect to the Trustee, the Primary
Collateral securing Mortgage Loans still held by the Trustee, so long as such
exercise does not materially impair the ability of the other party to exercise
its remedies against its Primary Collateral. If the exercise of the remedies by
one party would materially impair the ability of the other party to exercise its
remedies with respect to the Primary Collateral securing the Crossed Loans held
by such party, then both parties have agreed in the related Mortgage Loan
Purchase Agreement to forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Mortgage Loans can be
modified in a manner that complies with the Mortgage Loan Purchase Agreement to
remove the threat of material impairment as a result of the exercise of
remedies.
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests. The Trustee hereby acknowledges the assignment to it of
the Mortgage Loans and, subject to Sections 2.01 and 2.02, the delivery to it,
or a Custodian on its behalf, of the Mortgage Files and a fully executed
original counterpart of each of the Mortgage Loan Purchase Agreements, together
with the assignment to it of all of the other assets included in the Lower-Tier
REMIC. Concurrently with such assignment and delivery, and in exchange for the
Mortgage Loans (other than Excess Interest), receipt of which is hereby
acknowledged, the Trustee (i) acknowledges the issuance of the Uncertificated
Lower-Tier Interests by the Trustee to the Depositor and (ii) acknowledges the
authentication and delivery of the Class LR Certificates by the Trustee to or
upon the order of the Depositor, and (iii) immediately thereafter, the Trustee
acknowledges that it has caused the Certificate Registrar to execute and caused
the Authenticating Agent to authenticate and to deliver to or upon the order of
the Depositor, in exchange for the Uncertificated Lower-Tier Interests, the
Regular Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, the Class HG Certificates and the Class R Certificates, and
the Depositor hereby acknowledges the receipt by it or its designees, of such
Certificates and the Class A-2FL Regular Interest in authorized Denominations
evidencing the entire beneficial ownership of the Upper-Tier REMIC.
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-2FL
Regular Interest to the Trustee for the benefit of the respective Holders of the
Class A-2FL Certificates. The Trustee (i) acknowledges the assignment to it of
the Class A-2FL Regular Interest and acknowledges that it has executed the Swap
Contract, (ii) declares that it holds and will hold the Swap Contract and the
Class A-2FL Regular Interest in trust for the exclusive use and benefit of all
present and future Holders of the Class A-2FL Certificates and (iii) declares
that it has caused the Certificate Registrar to execute, and has caused the
Authenticating Agent to authenticate and to deliver to or upon the order of the
Depositor, in exchange for, the Class A-2FL Regular Interest and for entering
into the Swap Contract, and the Depositor hereby acknowledges the receipt by it
or its designees of the Class A-2FL Certificates in authorized Denominations. In
exchange for the Excess Interest, the Trustee acknowledges that it has caused
the Certificate Registrar to execute and has caused the Authenticating Agent to
authenticate and to deliver to or upon the order of the Depositor the Class S
Certificates in authorized Denominations.
Section 2.05 Grantor Trust Designations. The Class S Certificates
are hereby designated as undivided beneficial interests in the portion of the
Trust Fund consisting of Excess Interest, the Excess Interest Distribution
Account and proceeds thereof, which portion shall be treated as a grantor trust
within the meaning of subpart E, Part I of subchapter J of the Code. The Class
A-2FL Certificates are hereby designated as undivided beneficial interests in
the portion of the Trust Fund consisting of the Class A-2FL Regular Interest,
the Swap Contract, the Floating Rate Account and the proceeds thereof, which
portion shall be treated as a grantor trust within the meaning of subpart E,
Part I of subchapter J of the Code.
[End of Article II]
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of the Mortgage Loans. (a)
Each of the Master Servicers and the Special Servicer shall diligently service
and administer the Mortgage Loans and the Companion Loans it is obligated to
service pursuant to this Agreement on behalf of the Trust and in the best
interests of and for the benefit of the Certificateholders and, in the case of
the Companion Loans, the related Companion Holders and the Trustee (as holder of
the Class A-2FL Regular Interest and the Uncertificated Lower Tier Interests),
as a collective whole, taking into account the subordinate nature of the
Companion Loans, as the case may be (as determined by the applicable Master
Servicer or the Special Servicer, as the case may be, in its good faith and
reasonable judgment), in accordance with applicable law, the terms of this
Agreement and, with respect to each Loan Pair, the related Intercreditor
Agreement and the terms of the respective Mortgage Loans. With respect to each
Loan Pair, in the event of a conflict between this Agreement and the related
Intercreditor Agreement, the related Intercreditor Agreement shall control;
provided, in no event shall the applicable Master Servicer or the Special
Servicer take any action in accordance with the terms of any Intercreditor
Agreement that would cause the applicable Master Servicer or the Special
Servicer, as the case may be, to violate the Servicing Standards.
To the extent consistent with the foregoing, each Master Servicer
and the Special Servicer shall service the Mortgage Loans in accordance with the
applicable Servicing Standards. The "Servicing Standards" means the General
Servicing Standard or the GMAC Servicing Standard, as applicable. The "General
Servicing Standard" means with respect to any Master Servicer (other than GMAC
Commercial Mortgage Corporation) or Special Servicer the servicing of the
Mortgage Loans in accordance with the higher of the following standards of care:
(1) in the same manner in which, and with the same care, skill, prudence and
diligence with which such Master Servicer or the Special Servicer, as the case
may be, services and administers similar mortgage loans for other third party
portfolios and (2) the same care, skill, prudence and diligence with which such
Master Servicer or the Special Servicer, as the case may be, services and
administers similar mortgage loans owned by such Master Servicer or the Special
Servicer, as the case may be, with a view to the maximization of timely recovery
of principal and interest on a net present value basis on the Mortgage Loans or
the Specially Serviced Mortgage Loans, as applicable, and the best interests of
the Trust and the Certificateholders (and in the case of an AB Mortgage Loan,
the related Companion Holder, taking into account the subordinate nature of the
subject Companion Loan as a collective whole), and with respect to the Houston
Galleria Whole Loan, the holder of the Houston Galleria Pari Passu Companion
Loan, taking into account the pari passu nature of such Companion Loan and with
respect to the holders of the Houston Galleria Non-Trust Subordinate Companion
Loan and the Houston Galleria Trust Subordinate Companion Loan, taking into
account that the Houston Galleria Trust Subordinate Companion Loan is
subordinate to the Houston Galleria Non-Trust Subordinate Companion Loan and
taking into account that such Companion Loans are subordinate to the Houston
Galleria Pari Passu Loans, as determined by such Master Servicer or the Special
Servicer, as the case may be, in its reasonable judgment, in either case, giving
due consideration to the customary and usual standards of practice of prudent
institutional, multifamily and commercial mortgage loan servicers, but without
regard to: (i) any relationship that such Master Servicer, the Special Servicer
or any Affiliate of such Master Servicer or the Special Servicer may have with
any Mortgagor or any Affiliate of such Mortgagor, any Mortgage Loan Seller or
any other parties to this Agreement; (ii) the ownership of any Certificate or
Companion Loan by such Master Servicer, the Special Servicer or any Affiliate of
such Master Servicer or Special Servicer, as applicable; (iii) the adequacy of
such Master Servicer's or the Special Servicer's, as the case may be, right to
receive compensation for its services and reimbursement for its costs hereunder
or with respect to any particular transaction; (iv) the ownership, servicing or
management for others of any other mortgage loans or mortgaged properties by
such Master Servicer or Special Servicer; (v) any obligation of such Master
Servicer or the Special Servicer or any of its affiliates (in their capacity as
a Mortgage Loan Seller) to cure a breach of a representation or warranty or
document defect with respect to, or repurchase or substitute for the Mortgage
Loan; (vi) any other debt such Master Servicer or the Special Servicer or any of
its Affiliates has extended to any Mortgagor or any of its Affiliates; (vii) any
obligation of such Master Servicer or the Special Servicer or any of its
Affiliates to make Advances; and (viii) any option to purchase any Mortgage Loan
or Companion Loan by either Master Servicer or the Special Servicer or any of
their Affiliates. The "GMAC Servicing Standard" means, with respect to GMAC
Commercial Mortgage Corporation, the servicing of the Mortgage Loans in
accordance with the higher of the following standards of care: (1) with the same
care, skill and diligence as is normal and usual in its mortgage servicing
activities on behalf of third parties or on behalf of itself, whichever is
higher, with respect to mortgage loans that are comparable to the Mortgage Loans
and (2) with a view to the timely collection of all principal and interest and
other amounts due and payable under the Mortgage Loans or, if applicable, the
Companion Loans and the AB Mortgage Loans as a collective whole, taking into
account the subordinate nature of the Companion Loans, as applicable, and
without regard to: (1) any relationship that Master Servicer No. 2 or any
Affiliate of Master Servicer No. 2 may have with any Mortgagor; (2) the
ownership of any Certificate or, if applicable, mezzanine loan or Companion
Loan, by Master Servicer No. 2 or any Affiliate of Master Servicer No. 2; (3)
Master Servicer No. 2's obligation to make Advances; and (4) the adequacy of
Master Servicer No. 2's right to receive compensation payable to it and
reimbursement for its costs hereunder or with respect to any particular
transaction.
Without limiting the foregoing, subject to Section 3.21, (1) Master
Servicer No. 1 shall be obligated to service and administer all Group A Mortgage
Loans which, in each case, do not constitute Specially Serviced Mortgage Loans,
(2) Master Servicer No. 2 shall be obligated to service and administer all Group
B Mortgage Loans which, in each case, do not constitute Specially Serviced
Mortgage Loans and (3) the Special Servicer shall be obligated to service and
administer (i) any Mortgage Loans and Companion Loans as to which a Servicing
Transfer Event has occurred and is continuing (the "Specially Serviced Mortgage
Loans") and (ii) any REO Properties; provided, that the applicable Master
Servicer shall continue to receive payments and make all calculations, and
prepare, or cause to be prepared, all reports, required hereunder with respect
to the Specially Serviced Mortgage Loans, except for the reports specified
herein as prepared by the Special Servicer, as if no Servicing Transfer Event
had occurred and with respect to such REO Properties (and the related REO Loans)
as if no REO Acquisition had occurred, and to render such services with respect
to such Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein; provided further, however, that the applicable Master
Servicer shall not be liable for failure to comply with such duties insofar as
such failure results from a failure of the Special Servicer to provide
sufficient information to the applicable Master Servicer to comply with such
duties or failure by the Special Servicer to otherwise comply with its
obligations hereunder. Each Mortgage Loan or Companion Loan that becomes a
Specially Serviced Mortgage Loan shall continue as such until satisfaction of
the conditions specified in Section 3.21(a). Without limiting the foregoing,
subject to Section 3.21, the applicable Master Servicer shall be obligated to
service and administer all Mortgage Loans and Companion Loans, which are not
Specially Serviced Mortgage Loans. The Special Servicer shall make the
inspections, use its reasonable efforts to collect the statements and forward to
the applicable Master Servicer the reports in respect of the related Mortgaged
Properties with respect to Specially Serviced Mortgage Loans in accordance with
Section 3.12. After notification to the applicable Master Servicer, the Special
Servicer may contact the Mortgagor of any Non-Specially Serviced Mortgage Loan
if efforts by the applicable Master Servicer to collect required financial
information have been unsuccessful or any other issues remain unresolved. Such
contact shall be coordinated through and with the cooperation of the applicable
Master Servicer. No provision herein contained shall be construed as an express
or implied guarantee by the Master Servicers or the Special Servicer of the
collectability or recoverability of payments on the Mortgage Loans or shall be
construed to impair or adversely affect any rights or benefits provided by this
Agreement to the Master Servicers or the Special Servicer (including with
respect to Servicing Fees, Special Servicing Fees or the right to be reimbursed
for Advances and interest accrued thereon). Any provision in this Agreement for
any Advance by the applicable Master Servicer or the Trustee is intended solely
to provide liquidity for the benefit of the Certificateholders and not as credit
support or otherwise to impose on any such Person the risk of loss with respect
to one or more of the Mortgage Loans. No provision hereof shall be construed to
impose liability on the Master Servicers or the Special Servicer for the reason
that any recovery to the Certificateholders in respect of a Mortgage Loan at any
time after a determination of present value recovery is less than the amount
reflected in such determination.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans and, if applicable, the Companion
Loans, and any applicable Intercreditor Agreements (and intercreditor agreements
entered into after the Closing Date with respect to any Mortgage Loan in
connection with mezzanine debt permitted under the related Mortgage Loan
documents), and applicable law, the Master Servicers and the Special Servicer
each shall have full power and authority, acting alone or, in the case of any
Master Servicer, subject to Section 3.22, through one or more Sub-Servicers, to
do or cause to be done any and all things in connection with such servicing and
administration for which it is responsible which it may deem necessary or
desirable. Without limiting the generality of the foregoing, each of the Master
Servicers and the Special Servicer, in its own name (or in the name of the
Trustee and, if applicable, the Companion Holder), is hereby authorized and
empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, with respect to each Mortgage
Loan (and, with respect to a Companion Loan, the Companion Holder) it is
obligated to service under this Agreement: (i) any and all financing statements,
continuation statements and other documents or instruments necessary to maintain
the lien created by the related Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
(ii) subject to Sections 3.08 and 3.20, any and all modifications, waivers,
amendments or consents to, under or with respect to any documents contained in
the related Mortgage File; and (iii) any and all instruments of satisfaction or
cancellation, pledge agreements and other documents in connection with a
defeasance, or of partial or full release or discharge, and all other comparable
instruments. Subject to Section 3.10, the Trustee shall furnish, or cause to be
furnished, to the Master Servicers or the Special Servicer any powers of
attorney and other documents necessary or appropriate to enable the Master
Servicers or the Special Servicer, as the case may be, to carry out its
servicing and administrative duties hereunder; provided, however, that the
Trustee shall not be held liable for any negligence with respect to, or misuse
of, any such power of attorney by the Master Servicers or the Special Servicer.
Notwithstanding anything contained herein to the contrary, each Master Servicer
or the Special Servicer, as the case may be, shall not, without the Trustee's
written consent: (i) initiate any action, suit or proceeding solely under the
Trustee's name without indicating such Master Servicer's or the Special
Servicer's, as the case may be, representative capacity or (ii) take any action
with the intent to cause, and that actually causes, the Trustee to be required
to be registered to do business in any state.
(c) To the extent each Master Servicer is permitted pursuant to the
terms of the related Mortgage Loan documents or Companion Loan documents
(including the related Intercreditor Agreement) to exercise its discretion with
respect to any action which requires a confirmation of the Rating Agencies that
such action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates, such Master Servicer shall require the
costs of such written confirmation to be borne by the related Mortgagor. To the
extent the terms of the related Mortgage Loan documents or Companion Loan
documents require the Mortgagor to bear the costs of any confirmation of the
Rating Agencies that an action will not result in the downgrade, withdrawal or
qualification of the ratings of any Class of Certificates, the applicable Master
Servicer shall not waive the requirement that such costs and expenses be borne
by the related Mortgagor. To the extent that the terms of the related Mortgage
Loan documents or Companion Loan documents are silent as to who bears the costs
of any confirmation of the Rating Agencies that an action will not result in the
downgrade, withdrawal or qualification of the ratings of any Class of
Certificates, the applicable Master Servicer shall use reasonable efforts to
have the Mortgagor bear such costs and expenses. Each Master Servicer shall not
be responsible for the payment of such costs and expenses out of pocket.
(d) The relationship of each of the Master Servicers and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
(e) Each Master Servicer shall, to the extent permitted by the
related Mortgage Loan documents and Companion Loan documents and consistent with
the Servicing Standards, permit Escrow Payments to be invested only in Permitted
Investments.
(f) Within 60 days (or such shorter time period as is required by
the terms of the applicable Mortgage Loan documents) after the later of (i) the
receipt thereof and (ii) the Closing Date, the applicable Master Servicer shall
notify, or cause the applicable Mortgage Loan Seller to notify, each provider of
a letter of credit for each Mortgage Loan identified as having a letter of
credit on the Mortgage Loan Schedule, that the Trust (in care of the applicable
Master Servicer) for the benefit of the Certificateholders and any related
Companion Holders shall be the beneficiary under each such letter of credit and
notify each lessor under a Ground Lease for each Mortgage Loan identified as
subject to a leasehold interest on the Mortgage Loan Schedule, that the
applicable Master Servicer or the Special Servicer shall service such Mortgage
Loan for the benefit of the Certificateholders. If the Mortgage Loan documents
do not require the related Mortgagor to pay any costs and expenses relating to
any modifications to the related letter of credit, then the applicable Mortgage
Loan Seller shall pay such costs and expenses. If the Mortgage Loan documents
require the related Mortgagor to pay any costs and expenses relating to any
modifications to the related letter of credit, and such Mortgagor fails to pay
such costs and expenses after the applicable Master Servicer has exercised
reasonable efforts to collect such costs and expenses from such Mortgagor, then
the applicable Master Servicer shall give the applicable Mortgage Loan Seller
notice of such failure and the amount of costs and expenses, and such Mortgage
Loan Seller shall pay such costs and expenses. The costs and expenses of any
modifications to Ground Leases shall be paid by the related Mortgagor. Neither
the Master Servicers nor the Special Servicer shall have any liability for the
failure of any Mortgage Loan Seller to perform its obligations under the related
Mortgage Loan Purchase Agreement.
(g) Notwithstanding anything herein to the contrary, in no event
shall the Master Servicers (or the Trustee, as applicable) make a Servicing
Advance with respect to any Companion Loan to the extent the related AB Mortgage
Loan (or in the case of the Houston Galleria Whole Loan, the Houston Galleria
Loan and the Houston Galleria Trust Subordinate Companion Loan) has been paid in
full or is no longer included in the Trust Fund.
(h) Servicing and administration of each Companion Loan shall
continue hereunder for so long as the corresponding AB Mortgage Loan (or in the
case of the Houston Galleria Companion Loans, the Houston Galleria Loan or the
Houston Galleria Trust Subordinate Companion Loan) or any related REO Property
is part of the Trust Fund or for such longer period as any amounts payable by
the related Companion Holder to or for the benefit of the Trust or any party
hereto in accordance with the related Intercreditor Agreement remain due and
owing.
(i) Master Servicer No. 1 agrees that it shall pay the annual
surveillance fees of Xxxxx'x, Fitch and S&P.
(j) The Special Servicer agrees that upon the occurrence of a
Servicing Transfer Event with respect to any AB Mortgage Loan or the Houston
Galleria Whole Loan, it shall, subject to Section 3.21, enforce, on behalf of
the Trust, subject to the Servicing Standards and to the extent the Special
Servicer determines such action is in the best interests of the Trust Fund
(taking into consideration the Companion Loans as a collective whole), the
related Intercreditor Agreement and the rights that the Trustee, on behalf of
the Trust, as holder of each AB Mortgage Loan, the Houston Galleria Loan and the
Houston Galleria Trust Subordinate Companion Loan, as applicable, is entitled to
exercise thereunder. The costs and expenses incurred by the Special Servicer in
connection with such enforcement shall be paid as a Servicing Advance.
Section 3.02 Collection of Mortgage Loan Payments. (a) Each of the
applicable Master Servicers and the Special Servicer shall make reasonable
efforts to collect all payments called for under the terms and provisions of the
Mortgage Loans and Companion Loans (subject to the right of certain Companion
Holders to receive payments directly from the related Mortgagor pursuant to the
related Intercreditor Agreement) it is obligated to service hereunder, and shall
follow such collection procedures as are consistent with this Agreement
(including, without limitation, the Servicing Standards); provided, that with
respect to the Mortgage Loans that have Anticipated Repayment Dates, so long as
the related Mortgagor is in compliance with each provision of the related
Mortgage Loan documents, the applicable Master Servicer and the Special
Servicer, shall not take any enforcement action with respect to the failure of
the related Mortgagor to make any payment of Excess Interest, other than
requests for collection, until the maturity date of the related Mortgage Loan or
the outstanding principal balance of such Mortgage Loan has been paid in full;
provided that the Master Servicer or Special Servicer, as the case may be, may
take action to enforce the Trust Fund's right to apply excess cash flow to
principal in accordance with the terms of the Mortgage Loan documents. The
applicable Master Servicer or the Special Servicer, as the case may be, may in
its discretion waive any Penalty Charge in connection with any delinquent
payment on a Mortgage Loan or Companion Loan it is obligated to service
hereunder two times during any period of twenty-four consecutive months with
respect to any Mortgage Loan or Companion Loan; provided, that the applicable
Master Servicer or the Special Servicer, as the case may be, may in its
discretion waive any Penalty Charge in connection with any delinquent payment on
a Mortgage Loan or Companion Loan one additional time in such 24-month period so
long as no Advance or additional Trust Fund expense has been incurred and
remains unreimbursed to the Trust with respect to such Mortgage Loan or
Companion Loan. Any additional waivers during such 24-month period with respect
to such Mortgage Loan may be made only after the applicable Master Servicer or
Special Servicer, as the case may be, has given notice of a proposed waiver to
the Directing Certificateholder and the Directing Certificateholder has
consented to such additional waiver (provided, that if the applicable Master
Servicer or Special Servicer, as the case may be, fails to receive a response to
such notice from the Directing Certificateholder in writing within five (5) days
of giving such notice, then the Directing Certificateholder shall be deemed to
have consented to such proposed waiver).
(b) All amounts collected on any Mortgage Loan or Companion Loan in
the form of payments from Mortgagors, Insurance and Condemnation Proceeds or
Liquidation Proceeds shall be applied to amounts due and owing under the related
Mortgage (including, without limitation, for principal and accrued and unpaid
interest) in accordance with the express provisions of the related Mortgage
(and, with respect to each Loan Pair, the related Intercreditor Agreement) and,
in the absence of such express provisions, such payments from Mortgagors,
Insurance and Condemnation Proceeds or Liquidation Proceeds shall be applied
(after reimbursement first to the Trustee and second to the applicable Master
Servicer for any related outstanding Advances (including Workout-Delayed
Reimbursement Amounts that have not been reimbursed to the applicable Master
Servicer) and interest thereon as provided herein and unpaid servicing
compensation, Liquidation Expenses and related additional Trust Fund expenses):
first, as a recovery of accrued and unpaid interest on such Mortgage Loan or
Companion Loan, as applicable, at the related Mortgage Rate in effect from time
to time to but not including the Due Date in the Due Period of receipt; second,
as a recovery of Unliquidated Advances, third as a recovery of principal of such
Mortgage Loan then due and owing, in each case, that were paid from collections
on the Mortgage Loans and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", "Loan Group 1 Principal
Distribution Amount" or "Loan Group 2 Principal Distribution Amount"; fourth, as
a recovery of Nonrecoverable Advances; fifth, in accordance with the Servicing
Standards, as a recovery of any other amounts due and owing on such Mortgage
Loan or Companion Loan, as applicable, including, without limitation, Penalty
Charges, Yield Maintenance Charges and Excess Interest; and sixth, as a recovery
of principal of such Mortgage Loan or Companion Loan, as applicable, to the
extent of its entire unpaid principal balance. Notwithstanding the preceding,
such provisions shall not be deemed to affect the priority of distributions of
payments. To the extent that such amounts are paid by a party other than a
Mortgagor, such amounts shall be deemed to have been paid in respect of a
purchase of all or part of the Mortgaged Property (in the case of Insurance and
Condemnation Proceeds or Liquidation Proceeds) and then paid by the Mortgagor
under the Mortgage Loan or Companion Loan, as applicable, in accordance with the
preceding sentence. Amounts collected on any REO Loan shall be deemed to be
applied in accordance with the definition thereof.
(c) To the extent consistent with the terms of the Mortgage Loans
(and, with respect to each Loan Pair, the related Companion Loan and
Intercreditor Agreement) and applicable law, the applicable Master Servicer
shall apply all Insurance and Condemnation Proceeds it receives on a day other
than the Due Date to amounts due and owing under the related Mortgage Loan or
Companion Loan as if such Insurance and Condemnation Proceeds were received on
the Due Date immediately succeeding the month in which such Insurance and
Condemnation Proceeds were received.
(d) In the event that the applicable Master Servicer or Special
Servicer receives Excess Interest prior to the Determination Date for any Due
Period, or receives notice from the related Mortgagor that such Master Servicer
or Special Servicer will be receiving Excess Interest prior to the Determination
Date for any Due Period, such Master Servicer or Special Servicer, as the case
may be, will promptly notify the Trustee. None of the Master Servicers or the
Special Servicer shall be responsible for any failure of the related Mortgagor
to pay any such Excess Interest. The preceding statements shall not, however, be
construed to limit the provisions of Section 3.02(a).
(e) With respect to any Mortgage Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of credit related to
obtaining certain performance objectives described in the applicable Mortgage
Loan documents, the applicable Master Servicer shall, to the extent consistent
with the Servicing Standards, hold such escrows, letters of credit and proceeds
thereof as additional collateral and not apply such items to reduce the
principal balance of such Mortgage Loan unless otherwise required to do so
pursuant to the applicable Mortgage Loan documents, applicable law or court
order.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts. (a) Each Master Servicer shall establish and maintain one or
more accounts (the "Servicing Accounts"), into which all Escrow Payments shall
be deposited and retained, and shall administer such Servicing Accounts in
accordance with the Mortgage Loan documents and Companion Loan documents.
Amounts on deposit in Servicing Accounts may only be invested in accordance with
the terms of the related Mortgage Loan documents or in Permitted Investments in
accordance with the provisions of Section 3.06. Servicing Accounts shall be
Eligible Accounts to the extent permitted by the terms of the related Mortgage
Loan documents. Withdrawals of amounts so deposited from a Servicing Account may
be made only to: (i) effect payment of items for which Escrow Payments were
collected and comparable items; (ii) reimburse the Trustee and then the
applicable Master Servicer for any Servicing Advances; (iii) refund to
Mortgagors any sums as may be determined to be overages; (iv) pay interest to
Mortgagors on balances in the Servicing Account, if required by applicable law
or the terms of the related Mortgage Loan or Companion Loan and as described
below or, if not so required, to the applicable Master Servicer; (v) after the
occurrence of an event of default under the related Mortgage Loan or Companion
Loan, apply amounts to the indebtedness under the applicable Mortgage Loan or
Companion Loan; (vi) withdraw amounts deposited in error, (vii) pay Penalty
Charges to the extent permitted by the related Mortgage Loan documents, or
(viii) clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. As part of its servicing duties, each
Master Servicer, with respect to the Mortgage Loans it is obligated to service
hereunder, shall pay or cause to be paid to the Mortgagors interest on funds in
Servicing Accounts, to the extent required by law or the terms of the related
Mortgage Loan or Companion Loan; provided, however, that in no event shall such
Master Servicer be required to remit to any Mortgagor any amounts in excess of
actual net investment income or funds in the related Servicing Account. If
allowed by the related Mortgage Loan documents and applicable law, the
applicable Master Servicer may charge the related Mortgagor an administrative
fee for maintenance of the Servicing Accounts.
(b) The Special Servicer, in the case of REO Loans, and the
applicable Master Servicer, in the case of all other Mortgage Loans (and each
Companion Loan) that it is responsible for servicing hereunder, shall maintain
accurate records with respect to each related Mortgaged Property reflecting the
status of real estate taxes, assessments and other similar items that are or may
become a lien thereon and the status of insurance premiums and any ground rents
payable in respect thereof. The Special Servicer, in the case of REO Loans, and
the applicable Master Servicer, in the case of all other Mortgage Loans and
Companion Loans that it is responsible for servicing hereunder, shall use
reasonable efforts consistent with the Servicing Standards to obtain, from time
to time, all bills for the payment of such items (including renewal premiums)
and shall effect payment thereof from the REO Account or by the applicable
Master Servicer as Servicing Advances prior to the applicable penalty or
termination date and, in any event, prior to the institution of foreclosure or
similar proceedings with respect to the related Mortgaged Property for
nonpayment of such items, employing for such purpose Escrow Payments (which
shall be so applied by the Master Servicer at the written direction of the
Special Servicer in the case of REO Loans) as allowed under the terms of the
related Mortgage Loan or Companion Loan. The applicable Master Servicer shall
service and administer any reserve accounts (including monitoring, maintaining
or changing the amounts of required escrows) in accordance with the terms of
such Mortgage Loan and the Servicing Standards. To the extent that a Mortgage
Loan or a Companion Loan does not require a Mortgagor to escrow for the payment
of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, the Special Servicer, in the case of REO Loans,
and the applicable Master Servicer, in the case of all other Mortgage Loans and
Companion Loans that it is responsible for servicing hereunder, shall use
reasonable efforts consistent with the Servicing Standards to cause the
Mortgagor to comply with its obligation to make payments in respect of such
items at the time they first become due and, in any event, prior to the
institution of foreclosure or similar proceedings with respect to the related
Mortgaged Property for nonpayment of such items.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans and Loan Pairs that it is responsible for servicing hereunder, the
applicable Master Servicer shall advance all such funds as are necessary for the
purpose of effecting the payment of (i) real estate taxes, assessments and other
similar items that are or may become a lien thereon, (ii) ground rents (if
applicable) and (iii) premiums on Insurance Policies, in each instance if and to
the extent Escrow Payments collected from the related Mortgagor (or related REO
Revenues, if applicable) are insufficient to pay such item when due and the
related Mortgagor has failed to pay such item on a timely basis, and provided,
however, that the particular advance would not, if made, constitute a
Nonrecoverable Servicing Advance and provided further, however, that with
respect to the payment of taxes and assessments, the applicable Master Servicer
shall not be required to make such advance until the later of five Business Days
after such Master Servicer, the Special Servicer or the Trustee, as applicable,
has received confirmation that such item has not been paid or the date prior to
the date after which any penalty or interest would accrue in respect of such
taxes or assessments. The Special Servicer shall give the applicable Master
Servicer and the Trustee no less than five Business Days' written (facsimile or
electronic) notice before the date on which such Master Servicer is requested to
make any Servicing Advance with respect to a given Specially Serviced Mortgage
Loan or REO Property; provided, however, that only two Business Days' written
(facsimile or electronic) notice shall be required in respect of Servicing
Advances required to be made on an emergency or urgent basis; provided further,
that the Special Servicer shall not be entitled to make such a request (other
than for Servicing Advances required to be made on an urgent or emergency basis)
more frequently than once per calendar month (although such request may relate
to more than one Servicing Advance). The applicable Master Servicer may pay the
aggregate amount of such Servicing Advances listed on a monthly request to the
Special Servicer, in which case the Special Servicer shall remit such Servicing
Advances to the ultimate payees. In addition, the Special Servicer shall provide
the applicable Master Servicer or the Trustee with such information in its
possession as such Master Servicer or the Trustee, as the case may be, may
reasonably request to enable such Master Servicer or the Trustee, as applicable,
to determine whether a requested Servicing Advance would constitute a
Nonrecoverable Advance. Any request by the Special Servicer that any 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
Advance, and such Master Servicer shall be entitled to conclusively rely on such
determination; provided, that the determination shall not be binding on such
Master Servicer or Trustee. On the first Business Day after the Determination
Date for the related Distribution Date, the Special Servicer shall report to the
applicable Master Servicer if the Special Servicer determines any Servicing
Advance previously made by such Master Servicer with respect to a Specially
Serviced Mortgage Loan or REO Loan is a Nonrecoverable Servicing Advance. Such
Master Servicer shall be entitled to conclusively rely on such a determination,
and such determination shall be binding upon such Master Servicer, but shall no
way limit the ability of such Master Servicer in the absence of such
determination to make its own determination that any Advance is a Nonrecoverable
Advance. All such Advances shall be reimbursable in the first instance from
related collections from the Mortgagors and further as provided in Section 3.05.
No costs incurred by the applicable Master Servicer or the Special Servicer in
effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of the Mortgaged Properties shall, for purposes
hereof, including, without limitation, the Trustee's calculation of monthly
distributions to Certificateholders, be added to the unpaid principal balances
of the related Mortgage Loans or the Companion Loans, notwithstanding that the
terms of such Mortgage Loans or the Companion Loans so permit. If the applicable
Master Servicer fails to make any required Servicing Advance as and when due
(including any applicable cure periods), to the extent the Trustee has actual
knowledge of such failure, the Trustee shall make such Servicing Advance
pursuant to Section 7.05. Notwithstanding anything herein to the contrary, no
Servicing Advance shall be required hereunder if such Servicing Advance would,
if made, constitute a Nonrecoverable Servicing Advance. In addition, the
applicable Master Servicer shall consider Unliquidated Advances in respect of
prior Servicing Advances for purposes of nonrecoverability determinations. The
Special Servicer shall have no obligation under this Agreement to make any
Servicing Advances.
Notwithstanding anything to the contrary contained in this Section
3.03(c), any Master Servicer may in its good faith judgment elect (but shall not
be required unless directed by the Special Servicer with respect to Specially
Serviced Mortgage Loans and REO Loans) to make a payment from amounts on deposit
in the applicable Certificate Account (which shall be deemed first made from
amounts distributable as principal and then from all other amounts comprising
general collections) to pay for certain expenses set forth below notwithstanding
that such Master Servicer (or Special Servicer, as applicable) has determined
that a Servicing Advance with respect to such expenditure would be a
Nonrecoverable Servicing Advance (unless, with respect to Specially Serviced
Mortgage Loans or REO Loans, the Special Servicer has notified such Master
Servicer to not make such expenditure), where making such expenditure would
prevent (i) the related Mortgaged Property from being uninsured or being sold at
a tax sale or (ii) any event that would cause a loss of the priority of the lien
of the related Mortgage, or the loss of any security for the related Mortgage
Loan; provided, that in each instance, such Master Servicer or the Special
Servicer, as applicable, determines in accordance with the Servicing Standards
(as evidenced by an Officer's Certificate delivered to the Trustee) that making
such expenditure is in the best interest of the Certificateholders (and, if
applicable the Companion Holders), all as a collective whole. Each Master
Servicer or the Trustee may elect to obtain reimbursement of Nonrecoverable
Servicing Advances from the Trust Fund pursuant to the terms of Section 3.19(c).
(d) In connection with its recovery of any Servicing Advance out of
the applicable Certificate Account pursuant to Section 3.05(a), the Trustee,
then the Master Servicer, as the case may be, shall be entitled to receive, out
of any amounts then on deposit in such Certificate Account interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of such
Servicing Advance from the date made to, but not including, the date of
reimbursement. Subject to Section 3.19(c), each Master Servicer shall reimburse
itself or the Trustee, as the case may be, for any outstanding Servicing Advance
as soon as practically possible after funds available for such purpose are
deposited in the applicable Certificate Account.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan, the
applicable Master Servicer shall request from the Mortgagor written confirmation
thereof within a reasonable time after the later of the Closing Date and the
date as of which such plan is required to be established or completed. To the
extent any repairs, capital improvements, actions or remediations are required
to have been taken or completed pursuant to the terms of the Mortgage Loan, the
applicable Master Servicer shall request from the Mortgagor written confirmation
of such actions and remediations within a reasonable time after the later of the
Closing Date and the date as of which such action or remediations are required
to be or to have been taken or completed. To the extent a Mortgagor shall fail
to promptly respond to any inquiry described in this Section 3.03(e), the
applicable Master Servicer shall, in accordance with the Servicing Standards,
determine whether the related Mortgagor has failed to perform its obligations
under the related Mortgage Loan and report any such failure to the Special
Servicer within a reasonable time after the making of the request for written
confirmation.
Section 3.04 The Certificate Accounts, the Lower-Tier and Upper-Tier
Distribution Accounts, the Companion Distribution Account, the Interest Reserve
Account, the Gain-on-Sale Reserve Account, the Excess Interest Distribution
Account and the Floating Rate Account. (a) Each Master Servicer shall establish
and maintain, or cause to be established and maintained, a Certificate Account
in which such Master Servicer shall deposit or cause to be deposited on a daily
basis and in no event later than the Business Day following receipt of available
funds (in the case of payments by Mortgagors or other collections on the
Mortgage Loans or Companion Loans), except as otherwise specifically provided
herein, the following payments and collections received or made by or on behalf
of it subsequent to the Cut-off Date (other than in respect of principal and
interest on the Mortgage Loans or Companion Loans due and payable on or before
the Cut-off Date, which payments shall be delivered promptly to the appropriate
Mortgage Loan Seller or its designee and other than any amounts received from
Mortgagors which are received in connection with the purchase of defeasance
collateral), or payments (other than Principal Prepayments) received by it on or
prior to the Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans or Companion Loans;
(ii) all payments on account of interest on the Mortgage Loans or
Companion Loans, including Excess Interest, Yield Maintenance Charges and
Default Interest;
(iii) late payment charges and other Penalty Charges to the extent
required to offset interest on Advances and additional Trust Fund expenses
(other than Special Servicing Fees, Workout Fees or Liquidation Fees) as
required by Section 3.11;
(iv) all Insurance and Condemnation Proceeds and Liquidation
Proceeds (other than Gain-on-Sale Proceeds) received in respect of any
Mortgage Loan, Companion Loan or REO Property (other than Liquidation
Proceeds that are received in connection with the purchase by the
applicable Master Servicer, the Special Servicer, the Holders of the
Controlling Class, or the Holders of the Class LR Certificates of all the
Mortgage Loans and any REO Properties in the Trust Fund and that are to be
deposited in the Lower-Tier Distribution Account pursuant to Section 9.01)
together with any recovery of Unliquidated Advances in respect of the
related Mortgage Loans;
(v) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(vi) any amounts required to be deposited by the applicable Master
Servicer pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the applicable
Certificate Account; and
(vii) any amounts required to be deposited by the applicable Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in connection
with losses resulting from a deductible clause in a blanket hazard or
master single interest policy.
Notwithstanding the foregoing requirements, each Master Servicer
need not deposit into its related Certificate Account any amount that such
Master Servicer would be authorized to withdraw immediately from such account in
accordance with the terms of Section 3.05 and shall be entitled to instead
immediately pay such amount directly to the Person(s) entitled thereto;
provided, that such amounts shall be applied in accordance with the terms hereof
and shall be reported as if deposited in such Certificate Account and then
withdrawn.
The foregoing requirements for deposit in any Certificate Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, actual payments from Mortgagors in the nature of
Escrow Payments, charges for beneficiary statements or demands, assumption fees,
modification fees, extension fees, defeasance fees, or amounts collected for
Mortgagor checks returned for insufficient funds need not be deposited by the
applicable Master Servicer in its related Certificate Account. If the applicable
Master Servicer shall deposit in its related Certificate Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
such Certificate Account, any provision herein to the contrary notwithstanding.
Assumption, extension and modification fees actually received from Mortgagors on
Specially Serviced Mortgage Loans shall be promptly delivered to the Special
Servicer as additional servicing compensation.
Upon receipt of any of the foregoing amounts in clauses (i)-(iv)
above with respect to any Specially Serviced Mortgage Loans, the Special
Servicer shall remit within one (1) Business Day such amounts to the applicable
Master Servicer for deposit into the applicable Certificate Account, in
accordance with this Section 3.04(a). Any such amounts received by the Special
Servicer with respect to an REO Property shall be deposited by the Special
Servicer into the REO Account and remitted to the applicable Master Servicer for
deposit into the Certificate Account, pursuant to Section 3.16(c). With respect
to any such amounts paid by check to the order of the Special Servicer, the
Special Servicer shall endorse without recourse or warranty such check to the
order of the applicable Master Servicer and shall promptly deliver any such
check to such Master Servicer by overnight courier.
Funds in the Certificate Accounts may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. As of the Closing
Date, the Certificate Account for Master Servicer No. 1 shall be located at the
offices of PNC Bank, National Association. As of the Closing Date, the
Certificate Account for Master Servicer No. 2 shall be located at the offices of
Escrow Bank in Midvale, Utah. Each Master Servicer shall give notice to the
Trustee, the Special Servicer and the Depositor of the new location of its
Certificate Account prior to or promptly after any change thereof.
(b) The Trustee shall establish and maintain the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Interest Reserve Account, the Floating Rate Account
and the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders (and the Trustee as holder of the Class A-2FL Regular
Interest and the Uncertificated Lower-Tier Interests). The applicable Master
Servicer shall deliver to the Trustee each month, on or before the P&I Advance
Date therein, for deposit in the Lower-Tier Distribution Account, that portion
of the Available Distribution Amount and the Class HG Available Distribution
Amount attributable to the Mortgage Loans (in each case, calculated without
regard to clauses (a)(iv), (a)(viii), (c) and (d) of the definition of Available
Distribution Amount and the Class HG Available Distribution Amount) for the
related Distribution Date then on deposit in the applicable Certificate Account
after giving effect to withdrawals of funds pursuant to Section
3.05(a)(ii)-(xx).
With respect to the Companion Loans, each Companion Paying Agent
shall establish and maintain an account for each Companion Loan, each of which
may be a subaccount of the applicable Certificate Account, for distributions to
each Companion Holder (each, a "Companion Distribution Account") to be held for
the benefit of the related Companion Holder and shall, promptly upon receipt,
deposit in the Companion Distribution Account any and all amounts received by
the Companion Paying Agent that are required by the terms of this Agreement or
the applicable Intercreditor Agreement to be deposited therein. Each Master
Servicer shall deliver to the applicable Companion Paying Agent each month, on
or before the P&I Advance Date therein, for deposit in the Companion
Distribution Account, an aggregate amount of immediately available funds, to the
extent of available funds, equal to the amount to be distributed to the related
Companion Holder pursuant to the terms of this Agreement and the related
Intercreditor Agreement.
The Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account, the Interest Reserve Account, the Floating Rate Account and the
Companion Distribution Account may be subaccounts of a single Eligible Account,
which shall be maintained as a segregated account separate from other accounts.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account pursuant to the third preceding paragraph, each
Master Servicer shall, as and when required hereunder, deliver to the Trustee
for deposit in the Lower-Tier Distribution Account:
(i) any amounts required to be deposited by such Master Servicer
pursuant to Section 3.19 as Compensating Interest Payments in connection
with Prepayment Interest Shortfalls;
(ii) any P&I Advances required to be made by such Master Servicer in
accordance with Section 4.03;
(iii) any Liquidation Proceeds paid by such Master Servicer, the
Special Servicer, the Holders of the Controlling Class or the Holders of
the Class LR Certificates in connection with the purchase of all of the
Mortgage Loans and any REO Properties in the Trust Fund pursuant to
Section 9.01 (exclusive of that portion thereof required to be deposited
in the applicable Certificate Account pursuant to Section 9.01);
(iv) any Yield Maintenance Charges actually collected; and
(v) any other amounts required to be so delivered for deposit in the
Lower-Tier Distribution Account pursuant to any provision of this
Agreement.
If, as of the close of business (New York City time), on any P&I
Advance Date or on such other date as any amount referred to in the foregoing
clauses (i) through (v) are required to be delivered hereunder, the applicable
Master Servicer shall not have delivered to the Trustee for deposit in the
Lower-Tier Distribution Account and the Excess Interest Distribution Account the
amounts required to be deposited therein pursuant to the provisions of this
Agreement (including any P&I Advance pursuant to Section 4.03(a) hereof), such
Master Servicer shall pay the Trustee interest on such late payment at the Prime
Rate from and including the date such payment was required to be made (without
regard to any grace period set forth in Section 7.01(a)(i)) until (but not
including) the date such late payment is received by the Trustee.
The Trustee shall, upon receipt, deposit in the Lower-Tier
Distribution Account or the Excess Interest Distribution Account, as applicable,
any and all amounts received by the Paying Agent that are required by the terms
of this Agreement to be deposited therein.
Promptly on each Distribution Date, the Trustee shall be deemed to
withdraw from the Lower-Tier Distribution Account and deposit in the Upper-Tier
Distribution Account an aggregate amount of immediately available funds equal to
the Lower-Tier Regular Distribution Amount and the amount of any Yield
Maintenance Charges for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(b) and
4.01(d), respectively, and then immediately be deemed to withdraw from the
Upper-Tier Distribution Account and deposit in the Floating Rate Account an
aggregate amount of immediately available funds equal to the Class A-2FL Regular
Interest Distribution Amount, as specified in Section 4.01(a).
Funds on deposit in the Gain-on-Sale Reserve Account, the Interest
Reserve Account, the Excess Interest Distribution Account, the Floating Rate
Account, the Upper-Tier Distribution Account and the Lower-Tier Distribution
Account shall remain uninvested. As of the Closing Date, the Interest Reserve
Account, the Floating Rate Account, the Upper-Tier Distribution Account and the
Lower-Tier Distribution Account shall be located at the offices of the Trustee.
The Trustee shall give notice to the Master Servicers and the Depositor of the
location of the Interest Reserve Account, the Upper-Tier Distribution Account,
the Lower-Tier Distribution Account, the Floating Rate Account, the Excess
Interest Distribution Account and, if established, the Gain-on-Sale Reserve
Account, and of the proposed location of such accounts prior to any change
thereof.
(c) Prior to any Determination Date for the first Due Period during
which Excess Interest is received on any Mortgage Loan, and upon notification
from the applicable Master Servicer or Special Servicer pursuant to Section
3.02(d), the Trustee, on behalf of the Certificateholders, shall establish and
maintain the Excess Interest Distribution Account in the name of the Trustee in
trust for the benefit of the Class S Certificateholders. The Excess Interest
Distribution Account shall be established and maintained as an Eligible Account
(or as a subaccount of an Eligible Account). Prior to the applicable
Distribution Date, each Master Servicer shall remit to the Trustee for deposit
in the Excess Interest Distribution Account an amount equal to the Excess
Interest received prior to the Determination Date for the applicable Due Period.
Following the distribution of Excess Interest to Class S
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Trustee shall terminate the Excess Interest Distribution
Account.
(d) The Trustee shall establish (upon notice from the Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be maintained as an
Eligible Account (or as a subaccount of an Eligible Account), separate and apart
from trust funds for mortgage pass-through certificates of other series
administered by the Trustee. Funds in the Gain-on-Sale Reserve Account shall be
held uninvested.
Upon the disposition of any REO Property in accordance with Section
3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale
Proceeds, if any, realized in connection with such sale and remit such funds to
the Trustee for deposit into the Gain-on-Sale Reserve Account, other than
Gain-on-Sale Proceeds allocable to the Companion Loans, which shall be remitted
to the Companion Paying Agent for deposit into the Companion Distribution
Account.
(e) On or before the Closing Date, the Trustee shall establish and
maintain the Floating Rate Account in trust for the benefit of the Class A-2FL
Certificateholders. The Floating Rate Account shall (i) at all times be an
Eligible Account and (ii) relate solely to the Class A-2FL Certificates.
The Trustee shall deposit into the Floating Rate Account all amounts
received in respect of distributions on the Class A-2FL Regular Interest as
specified in Section 3.04(b), and shall immediately deposit into the Floating
Rate Account all amounts received under the Swap Contract.
Section 3.05 Permitted Withdrawals from the Certificate Accounts,
the Distribution Accounts, the Companion Distribution Account, the Excess
Interest Distribution Account and the Floating Rate Account. (a) Each Master
Servicer may, from time to time, make withdrawals from its related Certificate
Account for any of the following purposes (without duplication):
(i) no later than 4:00 p.m. New York City time on each P&I Advance
Date, to remit to the Trustee for deposit in the Lower-Tier Distribution
Account and the Excess Interest Distribution Account the amounts required
to be remitted pursuant to the first paragraph of Section 3.04(b) and
Section 3.04(c) or that may be applied to make P&I Advances pursuant to
Section 4.03(a); and pursuant to the second paragraph of Section 3.04(b),
to remit to the applicable Companion Paying Agent for deposit in the
applicable Companion Distribution Account the amounts required to be so
deposited on the date specified in the related Intercreditor Agreement
with respect to the related Companion Loans;
(ii) (A) to pay itself unpaid Servicing Fees in respect of each
Mortgage Loan, Companion Loan, Specially Serviced Mortgage Loan and REO
Loan, as applicable, such Master Servicer's rights to payment of Servicing
Fees pursuant to this clause (ii)(A) with respect to any Mortgage Loan,
Companion Loan, Specially Serviced Mortgage Loan or REO Loan, as
applicable, being limited to amounts received on or in respect of such
Mortgage Loan or Companion Loan (whether in the form of payments,
Liquidation Proceeds or Insurance and Condemnation Proceeds) or such REO
Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance and Condemnation Proceeds), that are allocable as recovery of
interest thereon and (B) to pay the Special Servicer any unpaid Special
Servicing Fees, Liquidation Fees and Workout Fees in respect of each
Specially Serviced Mortgage Loan or REO Loan or Corrected Mortgage Loan,
as applicable, and any expense incurred by the Special Servicer in
connection with performing any inspections pursuant to Section 3.12(a),
remaining unpaid first, out of related REO Revenues, Liquidation Proceeds
and Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties;
(iii) to reimburse the Trustee and itself or the other Master
Servicer (if amounts in such other Master Servicer's Certificate Account
are not sufficient for such reimbursement), as applicable (in that order),
for xxxxxxxxxxxx X&X Advances, the applicable Master Servicer's or the
Trustee's right to reimbursement pursuant to this clause (iii) being
limited to amounts received which represent Late Collections of interest
(net of the related Servicing Fees) on and principal of the particular
Mortgage Loans and REO Loans with respect to which such P&I Advances were
made; provided, however, that if such P&I Advance becomes a
Workout-Delayed Reimbursement Amount, then such P&I Advance shall
additionally thereafter be reimbursed from the portion of general
collections and recoveries on or in respect of the Mortgage Loans (other
than the Houston Galleria Trust Subordinate Companion Loan) and REO
Properties on deposit in its Certificate Account from time to time that
represent collections or recoveries of principal to the extent provided in
clause (v) below (to be allocated between the Loan Groups as set forth in
the last paragraph of Section 3.05 (a)) or, in the circumstances specified
in Section 3.19(c), from general collections;
(iv) to reimburse the Trustee and itself or the other Master
Servicer (if amounts in such other Master Servicer's Certificate Account
are not sufficient for such reimbursement), as applicable (in that order),
for unreimbursed Servicing Advances, the applicable Master Servicer's or
the Trustee's respective rights to receive payment pursuant to this clause
(iv) with respect to any Mortgage Loan, Companion Loan or REO Property
being limited to, as applicable, related payments, Liquidation Proceeds,
Insurance and Condemnation Proceeds and REO Revenues (provided, that, in
case of such reimbursement relating to (A) an AB Mortgage Loan, such
reimbursements shall be made first, from amounts collected on the related
Companion Loan and then from the related Mortgage Loan or (B) the Houston
Galleria Loan, such reimbursements shall be made first, from amounts
collected on the Houston Galleria Trust Subordinate Companion Loan, then
from amounts collected on the Houston Galleria Non-Trust Subordinate
Companion Loan, and then pro rata from the Houston Galleria Pari Passu
Loans, in each of the foregoing instances, subject to the terms of the
related Intercreditor Agreement); provided, however, that if such
Servicing Advance becomes a Workout-Delayed Reimbursement Amount, then
such Servicing Advance may additionally thereafter be reimbursed from the
portion of general collections and recoveries on or in respect of the
Mortgage Loans (other than the Houston Galleria Trust Subordinate
Companion Loan) and REO Properties on deposit in its Certificate Account
from time to time that represent collections or recoveries of principal to
the extent provided in clause (v) below (to be allocated between the Loan
Groups as set forth in the last paragraph of Section 3.05(a)) or, in the
circumstances specified in Section 3.19(c), from general collections;
(v) to reimburse the Trustee and itself or the other Master Servicer
(if amounts in such other Master Servicer's Certificate Account are not
sufficient for such reimbursement), as applicable (in that order) (1) for
Nonrecoverable Advances first, out of REO Revenues, Liquidation Proceeds
and Insurance and Condemnation Proceeds received on the related Mortgage
Loan and Companion Loan then, out of the principal portion of general
collections on the Mortgage Loans (other than the Houston Galleria Trust
Subordinate Companion Loan) and REO Properties (to be allocated between
the Loan Groups as set forth in the last paragraph of Section 3.05 (a)),
then, to the extent the principal portion of general collections is
insufficient and with respect to such excess only, subject to any exercise
of the sole option to defer reimbursement thereof pursuant to Section
3.19(c), out of other collections on the Mortgage Loans (other than the
Houston Galleria Trust Subordinate Companion Loan) and REO Properties and,
(2) with respect to the Workout-Delayed Reimbursement Amounts, out of the
principal portion of the general collections on the Mortgage Loans (other
than the Houston Galleria Trust Subordinate Companion Loan) and REO
Properties (to be allocated between the Loan Groups as set forth in the
last paragraph of Section 3.05 (a)), net of such amounts being reimbursed
pursuant to (1) above (provided, that in case of such reimbursement
relating to an AB Mortgage Loan, such reimbursement shall be made first,
from amounts collected on the related Companion Loan and then from the
related Mortgage Loan subject to the terms of the related Intercreditor
Agreement and in the case of such reimbursement relating to the Houston
Galleria Whole Loan, such reimbursements shall be made first, from amounts
collected on the Houston Galleria Trust Subordinate Companion Loan, then
from amounts collected on the Houston Galleria Non-Trust Subordinate
Companion Loan, and then pro rata from the Houston Galleria Pari Passu
Loans, in each of the foregoing instances, in accordance with the related
Intercreditor Agreement) or to pay itself, with respect to any Mortgage
Loan and the Companion Loans, if applicable, or REO Property any related
earned Servicing Fee that remained unpaid in accordance with clause (ii)
above following a Final Recovery Determination made with respect to such
Mortgage Loan or REO Property and the deposit into the applicable
Certificate Account of all amounts received in connection therewith;
(vi) at such time as it reimburses the Trustee and itself or the
other Master Servicer (if amounts in such other Master Servicer's
Certificate Account are not sufficient for such reimbursement), as
applicable (in that order) for (a) any xxxxxxxxxxxx X&X Advance (including
any such P&I Advance that constitutes a Workout-Delayed Reimbursement
Amount) pursuant to clause (iii) above, to pay itself or the Trustee or
such other servicing party, as applicable, any interest accrued and
payable thereon in accordance with Sections 4.03(d) and 3.11(c), (b) any
unreimbursed Servicing Advances (including any such Servicing Advance that
constitutes a Workout-Delayed Reimbursement Amount) pursuant to clause
(iv) above, to pay itself or the Trustee or the other Master Servicer (if
amounts in such other Master Servicer's Certificate Account are not
sufficient for such reimbursement), as the case may be, any interest
accrued and payable thereon in accordance with Sections 3.03(d) and
3.11(c) or (c) any Nonrecoverable Advances pursuant to clause (v) above,
to pay itself or the Trustee or the other Master Servicer (if amounts in
such other Master Servicer's Certificate Account are not sufficient for
such reimbursement), or such other servicing party, as the case may be,
any interest accrued and payable thereon;
(vii) to reimburse itself, the Special Servicer or the Trustee, as
the case may be, for any unreimbursed expenses reasonably incurred by such
Person in respect of any Breach or Defect giving rise to a repurchase or
substitution obligation of the applicable Mortgage Loan Seller under
Section 6 of the applicable Mortgage Loan Purchase Agreement, including,
without limitation, any expenses arising out of the enforcement of the
repurchase or substitution obligation, each such Person's right to
reimbursement pursuant to this clause (vii) with respect to any Mortgage
Loan or Companion Loan being limited to that portion of the Purchase Price
or Substitution Shortfall Amount paid with respect to such Mortgage Loan
or Companion Loan that represents such expense in accordance with clause
(iv) of the definition of Purchase Price; provided that, in case of such
reimbursement relating to an AB Mortgage Loan, such reimbursements shall
be made first, from amounts collected on the related Companion Loan and
then from the related AB Mortgage Loan and in the case of such
reimbursement relating to the Houston Galleria Loan, such reimbursements
shall be made first, from amounts collected on the Houston Galleria Trust
Subordinate Companion Loan, then from amounts collected on the Houston
Galleria Non-Trust Subordinate Companion Loan, and then pro rata from the
Houston Galleria Pari Passu Loans, in each of the foregoing instances, to
the extent explicitly provided in the related Intercreditor Agreement;
(viii) in accordance with Section 2.03(e), to reimburse itself or
the other Master Servicer (if amounts in such other Master Servicer's
Certificate Account are not sufficient for such reimbursement), or the
Special Servicer, as the case may be, first, out of Liquidation Proceeds,
Insurance and Condemnation Proceeds, and then out of general collections
on the Mortgage Loans and REO Properties, for any unreimbursed expense
reasonably incurred by such Person in connection with the enforcement of
the applicable Mortgage Loan Seller's obligations under Section 6 of the
applicable Mortgage Loan Purchase Agreement, but only to the extent that
such expenses are not reimbursable pursuant to clause (vii) above or
otherwise (provided, that in case of such reimbursement relating to an AB
Mortgage Loan, such reimbursements shall be made first, from amounts
collected on the related Companion Loan and then from the related Mortgage
Loan and in the case of such reimbursement relating to the Houston
Galleria Loan, such reimbursements shall be made first, from amounts
collected on the Houston Galleria Trust Subordinate Companion Loan, then
from amounts collected on the Houston Galleria Non-Trust Subordinate
Companion Loan, and then pro rata from the Houston Galleria Pari Passu
Loans, in each of the foregoing instances, subject to the terms of the
related Intercreditor Agreement and subject to the extent explicitly
provided for therein);
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) first, out of REO Revenues, Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties (provided, that in
case of such reimbursement relating to an AB Mortgage Loan, such
reimbursements shall be made first, from amounts collected on the related
Companion Loan and then from the related Mortgage Loan and in the case of
such reimbursement relating to the Houston Galleria Loan, such
reimbursements shall be made first, from amounts collected on the Houston
Galleria Trust Subordinate Companion Loan, then from amounts collected on
the Houston Galleria Non-Trust Subordinate Companion Loan, and then pro
rata from the Houston Galleria Pari Passu Loans, in each of the foregoing
instances, in accordance with the terms of the related Intercreditor
Agreement);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) (A) interest and investment income
earned in respect of amounts relating to the Trust Fund held in its
Certificate Account and the Companion Distribution Account as provided in
Section 3.06(b) (but only to the extent of the Net Investment Earnings
with respect to its Certificate Account and the Companion Distribution
Account for the period from and including the prior P&I Advance Date to
but excluding the P&I Advance Date related to such Distribution Date) and
(B) Penalty Charges (other than Penalty Charges collected while the
related Mortgage Loan is a Specially Serviced Mortgage Loan), but only to
the extent collected from the related Mortgagor and to the extent that all
amounts then due and payable with respect to the related Mortgage Loan
have been paid and such Penalty Charges are not needed to pay interest on
Advances or costs and expenses incurred by the Trust Fund (other than
Special Servicing Fees) in accordance with Section 3.11(d); and (b) to pay
the Special Servicer, as additional servicing compensation in accordance
with Section 3.11(c), Penalty Charges collected on Specially Serviced
Mortgage Loans (but only to the extent collected from the related
Mortgagor and to the extent that all amounts then due and payable with
respect to the related Specially Serviced Mortgage Loan have been paid and
such Penalty Charges are not needed to pay interest on Advances or costs
and expenses incurred by the Trust Fund in accordance with Section
3.11(d));
(xi) to recoup any amounts deposited in the applicable Certificate
Account in error;
(xii) to pay itself, the other Master Servicer (if amounts in such
other Master Servicer's Certificate Account are not sufficient for such
reimbursement), the Special Servicer, the Depositor or any of their
respective directors, officers, members, managers, employees and agents,
as the case may be, out of general collections, any amounts payable to any
such Person pursuant to Section 6.03(a) or 6.03(b) (provided, that in case
of such payments relating to an AB Mortgage Loan, such reimbursements
shall be made first, from amounts collected on the related Companion Loan
and then from the related Mortgage Loan and in the case of such payments
relating to the Houston Galleria Loan, such reimbursements shall be made
first, from amounts collected on the Houston Galleria Trust Subordinate
Companion Loan, then from amounts collected on the Houston Galleria
Non-Trust Subordinate Companion Loan, and then pro rata from the Houston
Galleria Pari Passu Loans, in each of the foregoing instances, subject to
the terms of the related Intercreditor Agreement, prior to being payable
out of general collections);
(xiii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b), 3.16(a), 3.17(b), 3.20(a), 3.20(d) and
10.01(f) to the extent payable out of the Trust Fund, (b) the cost of any
Opinion of Counsel contemplated by Section 11.01(a) or 11.01(c) in
connection with an amendment to this Agreement requested by the Trustee or
the applicable Master Servicer, which amendment is in furtherance of the
rights and interests of Certificateholders and (c) the cost of obtaining
the REO Extension contemplated by Section 3.16(a) (provided, that in case
of such payments relating to an AB Mortgage Loan, such reimbursements
shall be made first, from amounts collected on the related Companion Loan
and then from the related Mortgage Loan and in the case of such payments
relating to the Houston Galleria Loan, such reimbursements shall be made
first, from amounts collected on the Houston Galleria Trust Subordinate
Companion Loan, then from amounts collected on the Houston Galleria
Non-Trust Subordinate Companion Loan, and then pro rata from the Houston
Galleria Pari Passu Loans, in each of the foregoing instances, to the
extent explicitly provided in the related Intercreditor Agreement and
subject to the terms of the related Intercreditor Agreements prior to
being payable out of general collections);
(xiv) to pay out of general collections on the Mortgage Loans and
REO Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC, or any of their assets or
transactions, together with all incidental costs and expenses, to the
extent that none of the Master Servicer, the Special Servicer or the
Trustee is liable therefor pursuant to Section 10.01(g);
(xv) to reimburse the Trustee out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xvi) to pay the applicable Mortgage Loan Seller or any other Person
with respect to each Mortgage Loan, if any, previously purchased by such
Person pursuant to this Agreement, all amounts received thereon subsequent
to the date of purchase; or, in the case of the substitution for a
Mortgage Loan by a Mortgage Loan Seller pursuant to Section 2.03(b), to
pay such Mortgage Loan Seller with respect to the replaced Mortgage Loan
all amounts received thereon subsequent to the date of substitution, and
with respect to the related Qualified Substitute Mortgage Loan(s), all
Monthly Payments due thereon during or prior to the month of substitution,
in accordance with the last two sentences of the first paragraph of
Section 2.03(b);
(xvii) to remit to the Trustee for deposit in the Interest Reserve
Account the amounts required to be deposited in the Interest Reserve
Account pursuant to Section 3.25;
(xviii) to clear and terminate the applicable Certificate Account at
the termination of this Agreement pursuant to Section 9.01;
(xix) to remit to the Companion Paying Agent for deposit into the
Companion Distribution Account the amounts required to be deposited
pursuant to the second paragraph of Section 3.04(b); and
(xx) to pay for any expenditures to be borne by the Trust Fund
pursuant to the second paragraph of Section 3.03(c).
Each Master Servicer shall keep and maintain separate accounting
records, on a loan by loan and property by property basis when appropriate, for
the purpose of justifying any withdrawal from its related Certificate Account.
Each Master Servicer shall pay to the Special Servicer or the
Trustee from its related Certificate Account amounts permitted to be paid to it
therefrom monthly upon receipt of a certificate of a Servicing Officer of the
Special Servicer or a Responsible Officer of the Trustee describing the item and
amount to which the Special Servicer or the Trustee is entitled. Each Master
Servicer may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Loan, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for withdrawal from the applicable Certificate Account.
To the extent a Nonrecoverable Advance or Workout-Delayed Reimbursement Amount
with respect to a Mortgage Loan is required to be reimbursed from the principal
portion of the general collections on the Mortgage Loans (other than the Houston
Galleria Trust Subordinate Companion Loan) pursuant to clauses (iii), (iv) or
(v) of this Section 3.05(a), such reimbursement shall be made first, from the
principal collection available on the Mortgage Loans included in the same Loan
Group as such Mortgage Loan and if the principal collections in such Loan Group
are not sufficient to make such reimbursement in full, then from the principal
collections available in the other Loan Group (after giving effect to any
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts related to such other Loan Group). To the extent a Nonrecoverable
Advance with respect to a Mortgage Loan is required to be reimbursed from the
interest portion of the general collections on the Mortgage Loans (other than
the Houston Galleria Trust Subordinate Companion Loan) pursuant to clauses
(iii), (iv) or (v) of this Section 3.05(a), such reimbursement shall be made
first, from the interest collections available on the Mortgage Loans included in
the same Loan Group as such Mortgage Loan and if the interest collections in
such Loan Group are not sufficient to make such reimbursement in full, then from
the interest collections available in the other Loan Group (after giving effect
to any reimbursement of Nonrecoverable Advances related to such other Loan
Group).
(b) The Trustee may, from time to time, make withdrawals from the
Lower-Tier Distribution Account for any of the following purposes:
(i) to be deemed to make deposits of the Lower-Tier Regular
Distribution Amount and the Lower-Tier Class HG Distribution Amount
pursuant to Section 4.01(b) and to distribute the amount of any Yield
Maintenance Charges distributable pursuant to Section 4.01(d) in the
Upper-Tier Distribution Account, subject to the penultimate paragraph of
Section 3.04(b), and to make distributions on the Class LR Certificates
pursuant to Section 4.01(b);
(ii) to pay to the Trustee or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person, with respect to the Mortgage Loans,
pursuant to Section 8.05(b);
(iii) to pay the Trustee, 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 the
Trustee (A) as provided in clause (v) of the definition of "Disqualified
Organization," (B) as contemplated by Section 3.20(d), 8.02(ii) and
10.01(f), or (C) as contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by the Trustee,
which amendment is in furtherance of the rights and interests of
Certificateholders, in each case, to the extent not paid pursuant to
Section 11.01(g);
(v) to pay any and all federal, state and local taxes imposed on
either the Lower-Tier REMIC or Upper-Tier REMIC or on the assets or
transactions of any such REMIC, together with all incidental costs and
expenses, to the extent none of the Trustee, the REMIC Administrator, the
applicable Master Servicer or the Special Servicer is liable therefor
pursuant to Section 10.01(g);
(vi) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(e);
(vii) to pay to the applicable Master Servicer any amounts deposited
by the Master Servicer in the Distribution Account not required to be
deposited therein; and
(viii) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) The Trustee shall, on any Distribution Date, make withdrawals
from the Excess Interest Distribution Account to the extent required to make the
distributions of Excess Interest required by Section 4.01(i).
(d) The Trustee may make, or be deemed to make, withdrawals from the
Upper-Tier Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class A-2FL Certificates and the Class LR Certificates) and in
respect of the Class A-2FL Regular Interest on each Distribution Date
pursuant to Section 4.01 or 9.01, as applicable, subject to the
penultimate paragraph of Section 3.04(b); and
(ii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(e) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, (i) if amounts on deposit in any Certificate Account and the
Lower-Tier Distribution Account are not sufficient to pay the full amount of the
Servicing Fee listed in Section 3.05(a)(ii) and the Trustee Fee listed in
Section 3.05(b)(ii) and (iii), then the Trustee Fee shall be paid in full prior
to the payment of any Servicing Fees payable under Section 3.05(a)(ii) and in
the event that amounts on deposit in any Certificate Account and the Lower-Tier
Distribution Account are not sufficient to pay the full amount of such Trustee
Fee, the Trustee shall be paid based on the amount of such fees and (ii) if
amounts on deposit in any Certificate Account are not sufficient to reimburse
the full amount of Advances and interest thereon listed in Sections
3.05(a)(iii), (iv), (v) and (vi), then reimbursements shall be paid first to the
Trustee and second to the applicable Master Servicer.
(f) The Companion Paying Agent may, from time to time, make
withdrawals from the Companion Distribution Account to make distributions
pursuant to Section 4.01(j).
(g) The Trustee may make withdrawals from the Floating Rate Account
only for the following purposes:
(i) to withdraw amounts deposited in the Floating Rate Account in
error and pay such amounts to the Persons entitled thereto;
(ii) to pay any funds required to be paid to the Swap Counterparty
under the Swap Contract as specified in Section 3.32(c), and to pay costs
or expenses, if any, related to the Swap Contract pursuant to Section
3.32(f);
(iii) to make distributions to the Holders of the Class A-2FL
Certificates pursuant to Section 4.01(k); and
(iv) to clear and terminate the Floating Rate Account pursuant to
Section 9.01.
Section 3.06 Investment of Funds in the Certificate Accounts and the
REO Account. (a) Each Master Servicer may direct any depository institution
maintaining its related Certificate Account, the Companion Distribution Account,
or any Servicing Account (for purposes of this Section 3.06, an "Investment
Account"), the Special Servicer may direct any depository institution
maintaining the REO Account (also for purposes of this Section 3.06, an
"Investment Account") to invest or if it is such depository institution, may
itself invest, the funds held therein, only in one or more Permitted Investments
bearing interest or sold at a discount, and maturing, unless payable on demand,
(i) no later than the Business Day immediately preceding the next succeeding
date on which such funds are required to be withdrawn from such account pursuant
to this Agreement, if a Person other than the depository institution maintaining
such account is the obligor thereon and (ii) no later than the date on which
such funds are required to be withdrawn from such account pursuant to this
Agreement, if the depository institution maintaining such account is the obligor
thereon. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee (in its capacity as such). Each Master Servicer
(in the case of each Certificate Account, the Companion Distribution Account or
any Servicing Account maintained by or for such Master Servicer) or the Special
Servicer (in the case of the REO Account or any Servicing Account maintained by
or for the Special Servicer), on behalf of the Trustee, shall maintain
continuous physical possession of any Permitted Investment of amounts in each
Certificate Account, the Companion Distribution Account, the Servicing Accounts
or REO Account, as applicable, that is either (i) a "certificated security," as
such term is defined in the UCC (such that the Trustee shall have control
pursuant to Section 8-106 of the UCC) or (ii) other property in which a secured
party may perfect its security interest by physical possession under the UCC or
any other applicable law. In the case of any Permitted Investment held in the
form of a "security entitlement" (within the meaning of Section 8-102(a)(17) of
the UCC), each Master Servicer or the Special Servicer, as applicable, shall
take or cause to be taken such action as the Trustee deems reasonably necessary
to cause the Trustee to have control over such security entitlement. In the
event amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the applicable Master Servicer (in the
case of the Certificate Account, the Companion Distribution Account or any
Servicing Account maintained by or for the Master Servicer), the Special
Servicer (in the case of the REO Account or any Servicing Account maintained by
or for the Special Servicer) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (a) all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the applicable Master Servicer, the Special Servicer or
the Trustee, as the case may be, that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on
deposit in the Investment Account.
(b) Interest and investment income realized on funds deposited in
the applicable Certificate Account, the Companion Distribution Account or any
Servicing Account maintained by or for the applicable Master Servicer
maintaining such account, to the extent of the Net Investment Earnings, if any,
with respect to such account for the period from and including the prior P&I
Advance Date to but not including the P&I Advance Date related to such
Distribution Date, shall be for the sole and exclusive benefit of such Master
Servicer to the extent (with respect to Servicing Accounts) not required to be
paid to the related Mortgagor and shall be subject to its withdrawal, or
withdrawal at its direction, in accordance with Sections 3.03 or Section
3.05(a), as the case may be. Interest and investment income realized on funds
deposited in the REO Account or any Servicing Account maintained by or for the
Special Servicer, to the extent of the Net Investment Earnings, if any, with
respect to such account for each period from and including any P&I Advance Date
to but excluding the immediately succeeding P&I Advance Date, shall be for the
sole and exclusive benefit of the Special Servicer and shall be subject to its
withdrawal in accordance with Section 3.16(c). In the event that any loss shall
be incurred in respect of any Permitted Investment (as to which the applicable
Master Servicer or Special Servicer, as the case may be, would have been
entitled to any Net Investment Earnings hereunder) directed to be made by the
applicable Master Servicer or Special Servicer, as applicable, and on deposit in
any of the Certificate Account, the Companion Distribution Account, the
Servicing Account or the REO Account, such Master Servicer (in the case of the
Certificate Account, the Companion Distribution Account or any Servicing Account
maintained by or for such Master Servicer) and the Special Servicer (in the case
of the REO Account or any Servicing Account maintained by or for the Special
Servicer) shall deposit therein, no later than the P&I Advance Date, without
right of reimbursement, the amount of Net Investment Loss, if any, with respect
to such account for the period from and including the prior P&I Advance Date to
but excluding the P&I Advance Date related to such Distribution Date; provided,
that neither the applicable Master Servicer nor the Special Servicer shall be
required to deposit any loss on an investment of funds in an Investment Account
if such loss is incurred solely as a result of the insolvency of the federal or
state chartered depository institution or trust company that holds such
Investment Account, so long as such depository institution or trust company
satisfied the qualifications set forth in the definition of Eligible Account at
the time such investment was made (and, with respect to a Master Servicer, such
federal or state chartered depository institution or trust company is not an
Affiliate of such Master Servicer unless such depository institution or trust
company satisfied the qualification set forth in the definition of Eligible
Account both (x) at the time the investment was made and (y) 30 days prior to
such insolvency).
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, each Master Servicer may and, upon the request of Holders of
Certificates entitled to a majority of the Voting Rights allocated to any Class
shall, take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage. (a) The applicable Master Servicer (with respect to the
Mortgage Loans and the Specially Serviced Mortgage Loans) or the Special
Servicer (with respect to the REO Properties) shall use its efforts consistent
with the Servicing Standards to cause the Mortgagor to maintain, to the extent
required by the terms of the related Mortgage Loan, all insurance coverage as is
required under the related Mortgage Loan except to the extent that the failure
of the related Mortgagor to do so is an Acceptable Insurance Default. If the
Mortgagor does not so maintain such insurance coverage, subject to its
recoverability determination with respect to any required Servicing Advance, the
applicable Master Servicer shall maintain, for each Mortgage Loan all insurance
coverage as is required under the related Mortgage, but only in the event the
Trustee has an insurable interest therein and such insurance is available to
such Master Servicer and, if available, can be obtained at commercially
reasonable rates, except to the extent that the failure of the related Mortgagor
to do so is an Acceptable Insurance Default; provided, however, that if any
Mortgage permits the holder thereof to dictate to the Mortgagor the insurance
coverage to be maintained on such Mortgaged Property, the applicable Master
Servicer shall impose such insurance requirements as are consistent with the
Servicing Standards, provided, that with respect to the immediately preceding
proviso, such Master Servicer will not be obligated to maintain insurance
against property damage resulting from terrorist or similar acts if the
Mortgagor's failure is an Acceptable Insurance Default and only in the event the
Trustee has an insurable interest therein and such insurance is available to
such Master Servicer and, if available, can be obtained at commercially
reasonable rates. Subject to Section 3.17(a) and the costs of such insurance
being reimbursed or paid to the Special Servicer as provided in the last
sentence of this paragraph, the Special Servicer shall maintain for each REO
Property no less insurance coverage than was previously required of the
Mortgagor under the related Mortgage Loan and Companion Loan unless the Special
Servicer, with Directing Certificateholder consent, determines that such
insurance is not available at commercially reasonable rates. All Insurance
Policies maintained by the Master Servicers or the Special Servicer shall (i)
contain a "standard" mortgagee clause, with loss payable to the applicable
Master Servicer on behalf of the Trustee (in the case of insurance maintained in
respect of Mortgage Loans and Companion Loans other than REO Properties) or to
the Special Servicer on behalf of the Trustee (in the case of insurance
maintained in respect of REO Properties), (ii) be in the name of the Trustee (in
the case of insurance maintained in respect of REO Properties), (iii) include
coverage in an amount not less than the lesser of (x) the full replacement cost
of the improvements securing Mortgaged Property or the REO Property, as
applicable, or (y) the outstanding principal balance owing on the related
Mortgage Loan, Companion Loan or REO Loan, as applicable, and in any event, the
amount necessary to avoid the operation of any co-insurance provisions, (iv)
include a replacement cost endorsement providing no deduction for depreciation
(unless such endorsement is not permitted under the related Mortgage Loan
documents), (v) be noncancellable without 30 days prior written notice to the
insured party (except in the case of nonpayment, in which case such policy shall
not be cancelled without 10 days prior notice) and (vi) be issued by a Qualified
Insurer authorized under applicable law to issue such Insurance Policies. Any
amounts collected by the applicable Master Servicer under any such Insurance
Policies (other than amounts to be applied to the restoration or repair of the
related Mortgaged Property or REO Property or amounts to be released to the
related Mortgagor, in each case in accordance with the Servicing Standards and
the provisions of the related Mortgage Loan and Companion Loan) shall be
deposited in the applicable Certificate Account, subject to withdrawal pursuant
to Section 3.05(a). Any costs incurred by the applicable Master Servicer in
maintaining any such Insurance Policies in respect of Mortgage Loans and
Companion Loans (other than REO Properties) (i) if the Mortgagor defaults on its
obligation to do so, shall be advanced by the applicable Master Servicer as a
Servicing Advance and will be charged to the related Mortgagor and (ii) shall
not, for purposes of calculating monthly distributions to Certificateholders, be
added to the unpaid principal balance of the related Mortgage Loan and Companion
Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loan so
permit. Any cost incurred by the Special Servicer in maintaining any such
Insurance Policies with respect to REO Properties shall be an expense of the
Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if
the amount on deposit therein is insufficient therefor, advanced by the
applicable Master Servicer as a Servicing Advance.
Notwithstanding the foregoing, with respect to the Mortgage Loans
that either (x) require the Mortgagor to maintain "all risk" property insurance
(and do not expressly permit an exclusion for terrorism) or (y) contain
provisions generally requiring the applicable Mortgagor to maintain insurance in
types and against such risks as the holder of such Mortgage Loan reasonably
requires from time to time in order to protect its interests, the applicable
Master Servicer will be required to, consistent with the Servicing Standards,
(A) actively monitor whether the insurance policies for the related Mortgaged
Property contain Additional Exclusions, (B) request the Mortgagor to either
purchase insurance against the risks specified in the Additional Exclusions or
provide an explanation as to its reasons for failing to purchase such insurance
and (C) notify the Special Servicer if it has knowledge that any insurance
policy contains Additional Exclusions or if it has knowledge that any borrower
fails to purchase the insurance requested to be purchased by the applicable
Master Servicer pursuant to clause (B) above. If the Special Servicer or the
applicable Master Servicer, as applicable, determines in accordance with the
related Servicing Standard that such failure is not an Acceptable Insurance
Default, the Special Servicer or the applicable Master Servicer, as applicable,
be required to use efforts consistent with the Servicing Standards to cause the
Mortgagor to maintain such insurance. Furthermore, the Special Servicer or the
applicable Master Servicer, as applicable, shall inform the Rating Agencies as
to such conclusions for those Mortgage Loans that (i) have one of the ten (10)
highest outstanding Stated Principal Balances of all of the Mortgage Loans then
included in the Trust or (ii) comprise more than 5% of the outstanding Stated
Principal Balance of the Mortgage Loans then included in the Trust. During the
period that the Special Servicer or a Master Servicer, as applicable, is
evaluating the availability of such insurance, none of the Special Servicer, any
Master Servicer or the Directing Certificateholder will 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 such
Master Servicer will not itself maintain such insurance or cause such insurance
to be maintained.
(b) (i) If the applicable Master Servicer or the Special Servicer
shall obtain and maintain a blanket Insurance Policy with a Qualified Insurer
insuring against fire and hazard losses on all of the Mortgage Loans, including
the Houston Galleria Whole Loan, or REO Properties, as the case may be, required
to be serviced and administered hereunder, then, to the extent such Insurance
Policy provides protection equivalent to the individual policies otherwise
required, such Master Servicer or the Special Servicer, as applicable, shall
conclusively be deemed to have satisfied its obligation to cause fire and hazard
insurance to be maintained on the related Mortgaged Properties or REO
Properties. Such Insurance Policy may contain a deductible clause, in which case
the applicable Master Servicer or the Special Servicer, as applicable, shall, if
there shall not have been maintained on the related Mortgaged Property or REO
Property a fire and hazard Insurance Policy complying with the requirements of
Section 3.07(a), and there shall have been one or more losses which would have
been covered by such Insurance Policy, promptly deposit into the applicable
Certificate Account from its own funds the amount of such loss or losses that
would have been covered under the individual policy but are not covered under
the blanket Insurance Policy because of such deductible clause to the extent
that any such deductible exceeds the deductible limitation that pertained to the
related Mortgage Loan, including the Houston Galleria Whole Loan, or in the
absence of such deductible limitation, the deductible limitation which is
consistent with the Servicing Standards. In connection with its activities as
administrator and Master Servicer of the Mortgage Loans, each Master Servicer
agrees to prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket Insurance Policy in a timely
fashion in accordance with the terms of such policy. The Special Servicer, to
the extent consistent with the Servicing Standards, may maintain, earthquake
insurance on REO Properties, provided coverage is available at commercially
reasonable rates, the cost of which shall be a Servicing Advance.
(ii) If any Master Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by a master single
interest or force-placed insurance policy with a Qualified Insurer naming
such Master Servicer or the Special Servicer, as applicable, on behalf of
the Trustee as the loss payee, then to the extent such Insurance Policy
provides protection equivalent to the individual policies otherwise
required, such Master Servicer or the Special Servicer, as applicable,
shall conclusively be deemed to have satisfied its obligation to cause
such insurance to be maintained on the related Mortgaged Properties and
REO Properties. In the event the applicable Master Servicer or the Special
Servicer, as applicable, shall cause any Mortgaged Property or REO
Property to be covered by such master single interest or force-placed
insurance policy, the incremental costs of such insurance applicable to
such Mortgaged Property or REO Property (i.e., other than any minimum or
standby premium payable for such policy whether or not any Mortgaged
Property or REO Property is covered thereby) shall be paid by such Master
Servicer as a Servicing Advance. Such master single interest or
force-placed policy may contain a deductible clause, in which case the
applicable Master Servicer or the Special Servicer, as applicable, shall,
in the event that there shall not have been maintained on the related
Mortgaged Property or REO Property a policy otherwise complying with the
provisions of Section 3.07(a), and there shall have been one or more
losses which would have been covered by such policy had it been
maintained, deposit into the Certificate Account from its own funds the
amount not otherwise payable under the master single or force-placed
interest policy because of such deductible clause, to the extent that any
such deductible exceeds the deductible limitation that pertained to the
related Mortgage Loan, including the Houston Galleria Whole Loan, or, in
the absence of any such deductible limitation, the deductible limitation
which is consistent with the Servicing Standards.
(c) Each of the Master Servicers and the Special Servicer shall
obtain and maintain at its own expense and keep in full force and effect
throughout the term of this Agreement a blanket fidelity bond and an errors and
omissions Insurance Policy with a Qualified Insurer covering such Master
Servicer's and the Special Servicer's, as the case may be, officers and
employees acting on behalf of such Master Servicer and the Special Servicer in
connection with its activities under this Agreement. Notwithstanding the
foregoing, so long as the long term debt or the deposit obligations or
claims-paying ability of the Master Servicer or the Special Servicer, as the
case may be, is rated at least "A" by S&P, "A" by Xxxxx'x and "A" by Fitch, the
Master Servicer or the Special Servicer, as applicable, shall be allowed to
provide self-insurance with respect to a fidelity bond and an "errors and
omissions" Insurance Policy. Such amount of coverage shall be, with respect to
non-multifamily Mortgage Loans, in such form and amount as are consistent with
the Servicing Standards or, with respect to multifamily Mortgage Loans, at least
equal to the coverage that would be required by Xxxxxx Xxx or Xxxxxxx Mac,
whichever is greater, with respect to the applicable Master Servicer or the
Special Servicer if such Master Servicer or the Special Servicer, as applicable,
were servicing and administering the Mortgage Loans or Specially Serviced
Mortgage Loans, as applicable, for Xxxxxx Mae or Xxxxxxx Mac. Coverage of any
Master Servicer or the Special Servicer under a policy or bond obtained by an
Affiliate of the applicable Master Servicer or the Special Servicer and
providing the coverage required by this Section 3.07(c) shall satisfy the
requirements of this Section 3.07(c). The Special Servicer and the applicable
Master Servicer will promptly report in writing to the Trustee any material
changes that may occur in their respective fidelity bonds, if any, and/or their
respective errors and omissions Insurance Policies, as the case may be, and will
furnish to the Trustee copies of all binders and policies or certificates
evidencing that such bonds, if any, and insurance policies are in full force and
effect. The Master Servicers and the Special Servicer shall each cause the
Trustee to be an additional loss payee on any policy currently in place or
procured pursuant to the requirements of this Section 3.07(c).
(d) At the time any Master Servicer determines in accordance with
the Servicing Standards that any Mortgaged Property is in a federally designated
special flood hazard area (and such flood insurance has been made available),
such Master Servicer will use efforts consistent with the Servicing Standards to
cause the related Mortgagor (in accordance with applicable law and the terms of
the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall
default in its obligation to so maintain, shall itself maintain to the extent
available at commercially reasonable rates (as determined by such Master
Servicer in accordance with the Servicing Standards and to the extent the
Trustee, as mortgagee, has an insurable interest therein), flood insurance in
respect thereof, but only to the extent the related Mortgage Loan permits the
mortgagee to require such coverage and the maintenance of such coverage is
consistent with the Servicing Standards. Such flood insurance shall be in an
amount equal to the lesser of (i) the unpaid principal balance of the related
Mortgage Loan, and (ii) the maximum amount of insurance which is available under
the National Flood Insurance Act of 1968, as amended. If the cost of any
insurance described above is not borne by the Mortgagor, the applicable Master
Servicer shall promptly make a Servicing Advance for such costs.
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standards),
a flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the applicable Master Servicer as a
Servicing Advance.
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption
Agreements. (a) As to each Mortgage Loan or Companion Loan which contains a
provision in the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan or Companion Loan shall (or may
at the mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property; or
(ii) provides that such Mortgage Loan or Companion Loan may not be
assumed without the consent of the mortgagee in connection with any such
sale or other transfer,
then, for so long as such Mortgage Loan or Companion Loan is being serviced
under this Agreement, the Special Servicer or, with respect to all Non-Specially
Serviced Mortgage Loans, the applicable Master Servicer, on behalf of the
Trustee as the mortgagee of record, shall exercise (or waive its right to
exercise) the rights of the lender in the Mortgage Loan Documents (provided,
that (i) with respect to all Non-Specially Serviced Mortgage Loans, such Master
Servicer has obtained the prior written consent of the Special Servicer, which
consent shall be deemed given 15 Business Days after receipt (unless earlier
objected to) by the Special Servicer from such Master Servicer of such Master
Servicer's analysis and recommendation with respect to such waiver together with
such other information reasonably required by the Special Servicer, (ii) with
respect to all Specially Serviced Mortgage Loans and Non-Specially Serviced
Mortgage Loans, the Special Servicer shall, prior to consenting to such a
proposed action of a Master Servicer, obtain, and, prior to itself taking such
an action, the Special Servicer shall obtain, the prior written consent of the
Directing Certificateholder, which consent shall be deemed given 10 Business
Days after receipt (unless earlier objected to) by the Directing
Certificateholder of such Master Servicer's or Special Servicer's, as
applicable, analysis and recommendation with respect to such waiver together
with such other information reasonably required by the Directing
Certificateholder, and (iii) with respect to any Mortgage Loan (x) with a Stated
Principal Balance greater than or equal to $20,000,000, (y) with a Stated
Principal Balance greater than 5% of the aggregate Stated Principal Balance of
all the Mortgage Loans then outstanding or (z) together with any other Mortgage
Loans cross-collateralized with such Mortgage Loan, or together with all other
Mortgage Loans with the same or an affiliated Mortgagor, is one of the ten
largest of the then outstanding Mortgage Loans, by Stated Principal Balance, the
applicable Master Servicer or the Special Servicer, as the case may be, shall
not take such action unless it has obtained confirmation from each Rating Agency
stating that none of the then-current rating or ratings of all outstanding
Classes of the Certificates would be qualified, downgraded or withdrawn by such
Rating Agency, as a result of such waiver) any right it may have with respect to
such Mortgage Loan (x) to accelerate the payments thereon or (y) to withhold its
consent to the sale or transfer.
If any Mortgage Loan or Companion Loan provides that such Mortgage
Loan or Companion Loan may be assumed or transferred without the consent of the
mortgagee provided that certain conditions are satisfied, then for so long as
such Mortgage Loan or Companion Loan is being serviced under this Agreement, the
Special Servicer, with respect to all Specially Serviced Mortgage Loans, on
behalf of the Trustee as the mortgagee of record, shall determine in accordance
with the Servicing Standards whether such conditions have been satisfied, or,
with respect to any Non-Specially Serviced Mortgage Loan which does not allow
the mortgagee discretion in approving a transfer or assumption or allow for
discretion in determining whether conditions to a transfer or assumption have
been satisfied, the applicable Master Servicer, on behalf of the Trustee as
mortgagee of record, shall make such determination with respect to whether such
conditions have been satisfied.
(b) As to each Mortgage Loan and Companion Loan which contains a
provision in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan and Companion Loan shall (or
may at the mortgagee's option) become due and payable upon the creation of
any additional lien or other encumbrance on the related Mortgaged
Property; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property;
then, for so long as such Mortgage Loan and Companion Loan is serviced under
this Agreement, the Special Servicer or, with respect to all Non-Specially
Serviced Mortgage Loans, the applicable Master Servicer, on behalf of the
Trustee as the mortgagee of record, shall exercise (or waive its right to
exercise) (provided, that (i) (a) with respect to all Non-Specially Serviced
Mortgage Loans, such Master Servicer has made a recommendation and obtained the
prior written consent of the Special Servicer, which consent shall be deemed
given fifteen (15) Business Days after receipt by the Special Servicer from the
applicable Master Servicer of such Master Servicer's analysis and recommendation
with respect to such waiver together with such other information reasonably
required by the Special Servicer and (b) the Special Servicer has obtained (i)
the prior written consent of the Directing Certificateholder, which consent
shall be deemed given 10 Business Days after receipt by the Directing
Certificateholder of the Special Servicer's analysis and recommendation with
respect to such waiver together with such other information reasonably required
by the Directing Certificateholder, and (ii) from each Rating Agency a
confirmation that such waiver would not result in the downgrade, withdrawal or
qualification of the then-current ratings on any Class of outstanding
Certificates if such Mortgage Loan (1) has an outstanding principal balance
(together with any Mortgage Loans cross-collateralized with such Mortgage Loan)
that is greater than or equal to 2% of the Stated Principal Balance of the
outstanding Mortgage Loans or (2) has an LTV Ratio (including existing and
proposed debt) greater than 85% (including any proposed debt) or (3) a Debt
Service Coverage Ratio less than 1.20x (in each case, determined based upon the
aggregate of the Stated Principal Balance of the Mortgage Loan and the principal
amount of the proposed additional loan) or (4) is one of the ten (10) largest
Mortgage Loans (by Stated Principal Balance) or (5) has a Stated Principal
Balance over $20,000,000) any right it may have with respect to such Mortgage
Loan (x) to accelerate the payments thereon or (y) to withhold its consent to
the creation of any such additional lien or other encumbrance, in a manner
consistent with the Servicing Standards.
If any Mortgage Loan or Companion Loan provides that such Mortgage
Loan or Companion Loan may be further encumbered without the consent of the
mortgagee provided that certain conditions are satisfied and there is no lender
discretion with respect to the satisfaction of such conditions, then for so long
as such Mortgage Loan or Companion Loan is being serviced under this Agreement,
the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall
determine whether such conditions have been satisfied, or, with respect to all
Non-Specially Serviced Mortgage Loans, the applicable Master Servicer, on behalf
of the Trustee as mortgagee of record, shall make such determination with
respect to whether such conditions have been satisfied.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Sections 3.20 and 3.08(a), (b)
and (e), neither the Master Servicers nor the Special Servicer shall agree to
modify, waive or amend any term of any Mortgage Loan in connection with the
taking of, or the failure to take, any action pursuant to this Section 3.08. The
Master Servicers and the Special Servicer shall each provide copies of any
waivers it effects pursuant to Section 3.08(a) or (b) to the other and each
Rating Agency with respect to each Mortgage Loan. To the extent not previously
provided, the Master Servicers shall provide copies of any waivers it effects
pursuant to Section 3.08(a) or (b) to the Special Servicer and each Rating
Agency with respect to each Mortgage Loan.
(e) Notwithstanding any other provisions of this Section 3.08 or
Section 3.20, each Master Servicer may with respect to Non-Specially Serviced
Mortgage Loans, without any Directing Certificateholder approval, Rating Agency
confirmation or Special Servicer approval (provided, the applicable Master
Servicer delivers notice thereof to the Special Servicer and Directing
Certificateholder, except to the extent that the Special Servicer or the
Directing Certificateholder, as the case may be, notifies such Master Servicer
that such party does not desire to receive copies of such items), (i) grant
waivers of non-material covenant defaults (other than financial covenants),
including late financial statements; (ii) grant releases of non-material,
non-income producing parcels of a Mortgaged Property that do not materially
affect the use or value of the Mortgaged Property or the ability of the related
Mortgagor to pay amounts due in respect of the Mortgage Loan as and when due
provided such releases are required by the related Mortgage Loan documents;
(iii) approve or consent to grants of easements or right of way for utilities,
access, parking, public improvements or another purpose or subordinations of the
lien of Mortgage Loans to easements that do not materially affect the use or
value of a Mortgaged Property or a Mortgagor's ability to make any payments with
respect to the related Mortgage Loan; (iv) grant other routine approvals,
including the granting of subordination, non-disturbance and attornment
agreements and leasing consents that affect less than the lesser of (a) 25% of
the net rentable area of the Mortgaged Property, or (b) 30,000 square feet; (v)
consents to actions related to condemnation of non-material, non-income
producing parcels of the Mortgaged Property that do not materially affect the
use or value of the Mortgaged Property or the ability of the related Mortgagor
to pay amounts due in respect of the Mortgage Loan or Companion Loan as and when
due; (vi) consents to a change in property management relating to any Mortgage
Loan or Companion Loan with respect to Mortgage Loans or Companion Loans with an
outstanding principal balance of less than $2,500,000; and (vii) approve of
annual operating budgets; provided, that any such modification, waiver or
amendment (w) would not in any way affect a payment term of the Certificates,
(x) would not constitute a "significant modification" of such Mortgage Loan or
Companion Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would
not otherwise cause either the Upper-Tier REMIC or Lower-Tier REMIC to fail to
qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust under subpart E, Part I of subchapter J of the Code for federal income tax
purposes, (y) agreeing to such modification, waiver or amendment would be
consistent with the Servicing Standards, and (z) agreeing to such modification,
waiver or amendment shall not violate the terms, provisions or limitations of
this Agreement or any other document contemplated hereby.
(f) Notwithstanding any other provision of this Agreement, each
Master Servicer may not waive its rights or grant its consent under any "due on
sale" or "due on encumbrance" clause without the consent of the Special Servicer
and the Special Servicer may not waive its rights or grant its consent under any
"due-on-sale" or "due-on-encumbrance" clause relating to a Non-Specially
Serviced Mortgage Loan or relating to any Specially Serviced Mortgage Loan
without the consent of the Directing Certificateholder. The Directing
Certificateholder shall have 10 Business Days after receipt of notice along with
the applicable Master Servicer's or Special Servicer's recommendation and
analysis with respect to such waiver and any additional information the
Directing Certificateholder may reasonably request from the Special Servicer of
a proposed waiver or consent under any "due on sale" or "due on encumbrance"
clause in which to grant or withhold its consent (provided, that if the Special
Servicer fails to receive a response to such notice from the Directing
Certificateholder in writing within such period, then the Directing
Certificateholder shall be deemed to have consented to such proposed waiver or
consent).
Section 3.09 Realization Upon Defaulted Mortgage Loans. (a) The
Special Servicer shall, subject to subsections (b) through (d) of this Section
3.09 and Section 3.29, exercise reasonable efforts, consistent with the
Servicing Standards, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of property securing such Mortgage
Loans or Companion Loans, as come into and continue in default as to which no
satisfactory arrangements can be made for collection of delinquent payments, and
which are not released from the Trust Fund pursuant to any other provision
hereof. The foregoing is subject to the provision that, in any case in which a
Mortgaged Property shall have suffered damage from an Uninsured Cause, the
applicable Master Servicer or Special Servicer shall not be required to make a
Servicing Advance and expend funds toward the restoration of such property
unless the Special Servicer has determined in its reasonable discretion that
such restoration will increase the net proceeds of liquidation of such Mortgaged
Property to Certificateholders after reimbursement to such Master Servicer for
such Servicing Advance, and such Master Servicer or Special Servicer has not
determined that such Servicing Advance together with accrued and unpaid interest
thereon would constitute a Nonrecoverable Advance. The costs and expenses
incurred by the Special Servicer in any such proceedings shall be advanced by
the applicable Master Servicer, provided, that in each case, such cost or
expense would not, if incurred, constitute a Nonrecoverable Servicing Advance.
Nothing contained in this Section 3.09 shall be construed so as to require the
applicable Master Servicer or the Special Servicer, on behalf of the Trust, to
make a bid on any Mortgaged Property at a foreclosure sale or similar proceeding
that is in excess of the fair market value of such property, as determined by
such Master Servicer or the Special Servicer in its reasonable judgment taking
into account the factors described in Section 3.18(b) and the results of any
Appraisal obtained pursuant to the following sentence, all such bids to be made
in a manner consistent with the Servicing Standards. If and when the Special
Servicer or the applicable Master Servicer deems it necessary and prudent for
purposes of establishing the fair market value of any Mortgaged Property
securing a Defaulted Mortgage Loan or defaulted Companion Loan, whether for
purposes of bidding at foreclosure or otherwise, the Special Servicer or such
Master Servicer, as the case may be, is authorized to have an Appraisal
performed with respect to such property by an Independent MAI-designated
appraiser such cost of which shall be paid by such Master Servicer as a
Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incidental to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be paid by the applicable Master Servicer as a
Servicing Advance) to the effect that the holding of such personal
property by the Trust Fund (to the extent not allocable to a Companion
Loan) will not cause the imposition of a tax on the Upper-Tier REMIC or
the Lower-Tier REMIC under the REMIC Provisions or cause the Upper-Tier
REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Uncertificated Lower-Tier Interest or Certificate, or any
security issued by such a commercial mortgage securitization trust, is
outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09
and Section 3.29, neither the Special Servicer nor the Master Servicers shall,
on behalf of the Trustee, obtain title to a Mortgaged Property in lieu of
foreclosure or otherwise, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of the
Certificateholders and/or any related Companion Holder(s), would be considered
to hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless (as evidenced by an Officer's Certificate to such effect
delivered to the Trustee) the Special Servicer has previously determined in
accordance with the Servicing Standards, based on an Environmental Assessment of
such Mortgaged Property performed by an Independent Person who regularly
conducts Environmental Assessments and performed within six months prior to any
such acquisition of title or other action, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith is
reasonably likely to produce a greater recovery on a net present value
basis than not taking such actions, for such purposes taking into account
any insurance coverage provided pursuant to any environmental insurance
polices in effect and obtained on behalf of the Mortgagee with respect to
the related Mortgaged Property; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could be required, that
taking such actions with respect to such Mortgaged Property is reasonably
likely to produce a greater recovery on a net present value basis than not
taking such actions.
The cost of any such Environmental Assessment shall be paid by the
applicable Master Servicer as a Servicing Advance and the cost of any remedial,
corrective or other further action contemplated by clause (i) and/or clause (ii)
of the preceding sentence shall be paid by the applicable Master Servicer as a
Servicing Advance, unless it is a Nonrecoverable Servicing Advance (in which
case it shall be an expense of the Trust Fund and may be withdrawn by such
Master Servicer from its Certificate Account); and if any such Environmental
Assessment so warrants, the Special Servicer shall (except with respect to any
Companion Loan and any Environmental Assessment ordered after the related AB
Mortgage Loan or the Houston Galleria Loan and the Houston Galleria Trust
Subordinate Companion Loan, as applicable, has been paid in full or is no longer
in the Trust), at the expense of the Trust Fund, perform such additional
environmental testing as it deems necessary and prudent to determine whether the
conditions described in clauses (i) and (ii) of the preceding sentence have been
satisfied. With respect to Non-Specially Serviced Mortgage Loans, the applicable
Master Servicer and, with respect to Specially Serviced Mortgage Loans, the
Special Servicer shall review and be familiar with the terms and conditions
relating to enforcing claims and shall monitor the dates by which any claim or
action must be taken (including delivering any notices to the insurer and using
reasonable efforts to perform any actions required under such policy) under each
environmental insurance policy in effect and obtained on behalf of the mortgagee
to receive the maximum proceeds available under such policy for the benefit of
the Certificateholders and the Trustee (as holder of the Class A-2FL Regular
Interest and the Uncertificated Lower-Tier Interests).
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and any related Companion
Loan(s) and (ii) there has been no breach of any of the representations and
warranties set forth in or required to be made pursuant to Section 6 of each of
the Mortgage Loan Purchase Agreements for which the applicable Mortgage Loan
Seller could be required to repurchase such Defaulted Mortgage Loan pursuant to
Section 6 of the applicable Mortgage Loan Purchase Agreement, then the Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust Fund (other than proceeding to acquire title to the Mortgaged
Property) and is hereby authorized at such time as it deems appropriate to
release such Mortgaged Property from the lien of the related Mortgage, provided,
that if such Mortgage Loan has a then outstanding principal balance of greater
than $1,000,000, then prior to the release of the related Mortgaged Property
from the lien of the related Mortgage, (i) the Special Servicer shall have
notified the Rating Agencies, the Trustee, the applicable Master Servicer and
the Directing Certificateholder in writing of its intention to so release such
Mortgaged Property and the bases for such intention, (ii) the Trustee shall have
notified the Certificateholders in writing of the Special Servicer's intention
to so release such Mortgaged Property, (iii) the Holders of Certificates
entitled to a majority of the Voting Rights shall have consented to such release
within 30 days of the Trustee's distributing such notice (failure to respond by
the end of such 30-day period being deemed consent), and (iv) the Special
Servicer shall have received written confirmation from each Rating Agency that
such release will not cause the downgrade, withdrawal or qualification of any of
the then-current ratings of any Class of Certificates. To the extent any fee
charged by each Rating Agency in connection with rendering such written
confirmation is not paid by the related Mortgagor, such fee is to be an expense
of the Trust; provided, that the applicable Master Servicer and the Special
Servicer, as the case may be, shall use its reasonable efforts to collect such
fee from the Mortgagor to the extent permitted under the related Mortgage Loan
documents.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Directing Certificateholder
and the applicable Master Servicer monthly regarding any actions taken by the
Special Servicer with respect to any Mortgaged Property securing a Defaulted
Mortgage Loan or defaulted Companion Loan as to which the environmental testing
contemplated in subsection (c) above has revealed that either of the conditions
set forth in clauses (i) and (ii) of the first sentence thereof has not been
satisfied, in each case until the earlier to occur of satisfaction of both such
conditions, repurchase of the related Mortgage Loan by the applicable Mortgage
Loan Seller or release of the lien of the related Mortgage on such Mortgaged
Property. The Trustee shall forward, or cause to be forwarded all such reports
to each Rating Agency and the Certificateholders upon request.
(f) The Special Servicer shall notify the applicable Master Servicer
of any abandoned and/or foreclosed properties which require reporting to the
Internal Revenue Service and shall provide such Master Servicer with all
information regarding forgiveness of indebtedness and required to be reported
with respect to any Mortgage Loan or Companion Loan which is abandoned or
foreclosed and such Master Servicer shall report to the Internal Revenue Service
and the related Mortgagor, in the manner required by applicable law, such
information and such Master Servicer shall report, via Form 1099C (or any
successor form), all forgiveness of indebtedness to the extent such information
has been provided to such Master Servicer by the Special Servicer. Upon request,
each Master Servicer shall deliver a copy of any such report to the Trustee.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan and applicable Companion
Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Mortgage Loan, defaulted Companion Loan or REO Property
and the basis thereof. Each Final Recovery Determination shall be evidenced by
an Officer's Certificate promptly delivered to the Trustee, the Directing
Certificateholder and the applicable Master Servicer and in no event later than
the next succeeding P&I Advance Determination Date.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files. (a)
Upon the payment in full of any Mortgage Loan, or the receipt by any Master
Servicer or the Special Servicer, as the case may be, of a notification that
payment in full shall be escrowed in a manner customary for such purposes, such
Master Servicer or Special Servicer, as the case may be, will immediately notify
the Trustee and request delivery of the related Mortgage File. Any such notice
and request shall be in the form of a Request for Release signed by a Servicing
Officer and shall include a statement to the effect that all amounts received or
to be received in connection with such payment which are required to be
deposited in the applicable Certificate Account pursuant to Section 3.04(a) or
remitted to the applicable Master Servicer to enable such deposit, have been or
will be so deposited. Within seven Business Days (or within such shorter period
as release can reasonably be accomplished if the applicable Master Servicer or
the Special Servicer notifies the Trustee of an exigency) of receipt of such
notice and request, the Trustee shall release, or cause any related Custodian to
release, the related Mortgage File to the applicable Master Servicer or Special
Servicer, as the case may be; provided, however, that in the case of the payment
in full of the Houston Galleria Loan or Houston Galleria Trust Subordinate
Companion Loan, the Mortgage Loan File with respect to the Houston Galleria
Whole Loan shall not be released by the Trustee (and the applicable Master
Servicer or Special Servicer shall not request such release) unless such
Mortgage Loan that is paid in full is the sole remaining portion of the Houston
Galleria Whole Loan in the Trust Fund. No expenses incurred in connection with
any instrument of satisfaction or deed of reconveyance shall be chargeable to
the Certificate Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan (and any related Companion Loan), the applicable Master
Servicer or the Special Servicer shall deliver to the Trustee a Request for
Release signed by a Servicing Officer. Upon receipt of the foregoing, the
Trustee shall deliver or cause the related Custodian to deliver, the Mortgage
File or any document therein to the applicable Master Servicer or the Special
Servicer (or a designee), as the case may be. Upon return of such Mortgage File
or such document to the Trustee or the related Custodian, or the delivery to the
Trustee of a certificate of a Servicing Officer of the applicable Master
Servicer or the Special Servicer, as the case may be, stating that such Mortgage
Loan was liquidated and that all amounts received or to be received in
connection with such liquidation which are required to be deposited into the
applicable Certificate Account pursuant to Section 3.04(a) have been or will be
so deposited, or that such Mortgage Loan has become an REO Property, a copy of
the Request for Release shall be released by the Trustee to the applicable
Master Servicer or the Special Servicer (or a designee), as the case may be,
with the original being released upon termination of the Trust.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the foreclosure or trustee's sale in respect of
a Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note (including any note evidencing the related
Companion Loan) or Mortgage or to obtain a deficiency judgment, or to enforce
any other remedies or rights provided by the Mortgage Note or Mortgage or
otherwise available at law or in equity. The Special Servicer shall be
responsible for the preparation of all such documents and pleadings. When
submitted to the Trustee for signature, such documents or pleadings shall be
accompanied by a certificate of a Servicing Officer requesting that such
pleadings or documents be executed by the Trustee and certifying as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
(d) (i) The Special Servicer shall, (1) direct, manage, prosecute
and/or defend any action brought by a Mortgagor against the Trust or the Trustee
in its capacity as Trustee 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"). To the
extent either 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 applicable Master Servicer shall (1) notify the Special
Servicer of such Trust Related Litigation within ten (10) days of the applicable
Master Servicer receiving service of such Trust Related Litigation; (2) provide
monthly status reports to the Special Servicer, regarding such Trust-Related
Litigation; and (3) so long as the applicable 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, if there are claims against the applicable Master Servicer
and the applicable Master Servicer has not determined that separate counsel is
required for such claims, such counsel shall be reasonably acceptable to such
Master Servicer. In consulting with and acting at the direction of the Special
Servicer, the applicable Master Servicer shall not take any action with respect
to the Trust-Related Litigation unless and until it has notified the Special
Servicer and the Special Servicer has not objected within 5 Business Days of
having been notified thereof and having been provided with all information that
the Special Servicer has reasonably requested with respect thereto promptly
following its receipt of such notice. If the applicable Master Servicer seeks a
written determination from the Special Servicer as to any action and so notifies
the Special Servicer in writing but no written objection has been received by
the applicable Master Servicer within such 5 Business Day period, then the
Special Servicer shall be deemed to have approved the taking of such action.
(ii) 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 3.10(d)(iii) below, the applicable Master Servicer shall retain
the right to make determinations relating to claims against such Master
Servicer, including but not limited 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 applicable Master Servicer to
material liability or materially expand the scope of the applicable Master
Servicer's obligations under this Agreement.
(iii) Notwithstanding each Master Servicer's right to make
determinations relating to claims against such Master Servicer, the
Special Servicer shall (1) have the right at any time to direct the
applicable Master Servicer to settle any claims brought against the Trust,
including claims asserted against the applicable 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
applicable Master Servicer relating to claims against the applicable
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 applicable Master Servicer, the
cost of such settlement is paid by the Trust, and the applicable 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.
(iv) Notwithstanding anything to the contrary herein, this Section
3.10(d) shall not apply with respect to Trust-Related Litigation related
to a Non-Specially Serviced Loan unless the Directing Certificateholder
shall direct the Special Servicer to assume control of such Trust-Related
Litigation. The Special Servicer shall have no obligation to represent the
interests of the Trust or direct the applicable Master Servicer with
respect to Trust-Related Litigation related to Non-Specially Serviced
Loans in any manner and shall not be deemed to have unreasonably withheld
or delayed providing such direction described in this Section 3.10(d)(iv)
unless and until it has received reasonable compensation therefore
directly from the Directing Certificateholder (out of the Directing
Certificateholder's own funds and not from the Trust) and the applicable
Master Servicer shall not be obligated to obtain any direction from the
Special Servicer if the foregoing condition has not been satisfied.
(v) In the event (a) of any action, suit, litigation or proceeding
naming 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 applicable Master Servicer or
the Special Servicer, as applicable, may retain counsel and appear in any
proceeding on its own behalf in order to protect and represent its
interests; provided that the applicable Master Servicer or the Special
Servicer, as applicable, shall retain the right to manage and direct any
such action, suit, litigation or proceeding, subject to the foregoing
provisions of this Section 3.10(d); (b) of any action, suit, litigation or
proceeding, other than an action, suit, litigation or proceeding relating
to the enforcement of the obligations under the related Mortgage Loan
documents or any Mortgage Loan Purchase Agreement, neither the applicable
Master Servicer nor the Special Servicer shall, without the prior written
consent of the Trustee, (i) initiate any action, suit, litigation or
proceeding in the name of the Trustee or (ii) engage counsel to represent
the Trustee; (c) in no event shall the applicable Master Servicer or the
Special Servicer, as applicable, 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 (d)
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, whether as Trustee or
individually; provided that the applicable Master Servicer or the Special
Servicer, as applicable, shall retain the right to manage and direct any
such action, suit, litigation or proceeding; subject to the foregoing
provisions of this Section 3.10(d). For the avoidance of doubt and
notwithstanding anything to the contrary herein, a related Companion
Holder's or Whole Loan Controlling Holder's approval or consent rights
under this Section 3.10(d) with respect to a Whole Loan are subject to the
limitations on such approvals and consents set forth in the related
Intercreditor Agreement.
Section 3.11 Servicing Compensation. (a) As compensation for its
activities hereunder, each Master Servicer shall be entitled to receive the
Servicing Fee with respect to each Mortgage Loan, each Companion Loan and REO
Loan (including Specially Serviced Mortgage Loans) that it is responsible for
servicing hereunder. As to each Mortgage Loan, Companion Loan and REO Loan, the
Servicing Fee shall accrue from time to time at the Servicing Fee Rate and shall
be computed on the basis of the Stated Principal Balance of such Mortgage Loan,
Companion Loan or REO Loan, as the case may be, and in the same manner as
interest is calculated on such Mortgage Loan, Companion Loan or REO Loan, as the
case may be, and, in connection with any partial month interest payment, for the
same period respecting which any related interest payment due on such Mortgage
Loan or Companion Loan or deemed to be due on such REO Loan is computed. The
Servicing Fee with respect to any Mortgage Loan, Companion Loan or REO Loan
shall cease to accrue if a Liquidation Event occurs in respect thereof. The
Servicing Fee shall be payable monthly, on a loan-by-loan basis, from payments
of interest on each Mortgage Loan, Companion Loan and REO Revenues allocable as
interest on each REO Loan, and as otherwise provided by Section 3.05(a). Each
Master Servicer shall be entitled to recover unpaid Servicing Fees in respect of
any Mortgage Loan, Companion Loan or REO Loan out of that portion of related
payments, Insurance and Condemnation Proceeds, Liquidation Proceeds and REO
Revenues (in the case of an REO Loan) allocable as recoveries of interest, to
the extent permitted by Section 3.05(a). Except as set forth in the third
paragraph of this Section 3.11(a) and Section 7.01(c), the right to receive the
Servicing Fee may not be transferred in whole or in part (except in connection
with a transfer of all of the applicable Master Servicer's duties and
obligations hereunder to a successor master servicer in accordance with the
terms of this Agreement).
Each Master Servicer shall be entitled to retain, and shall not be
required to deposit in its Certificate Account pursuant to Section 3.04(a),
additional servicing compensation in the form of (i) 100% of modification,
waiver and consent fees pursuant to Section 3.08(e), provided the consent of the
Special Servicer is not required to take such action, (ii) 100% of all
defeasance fees and 50% of all application fees received on Non-Specially
Serviced Mortgage Loans and (iii) 50% of all assumption, extension, earnout,
waiver and consent fees pursuant to Section 3.08(a) and 3.08(b) on the
Non-Specially Serviced Mortgage Loans, to the extent that such fees are paid by
the Mortgagor and for which the Special Servicer's consent or approval is
required on the Non-Specially Serviced Mortgage Loans and only to the extent
that all amounts then due and payable with respect to the related Mortgage Loan
have been paid. In addition, each Master Servicer shall be entitled to retain as
additional servicing compensation any charges for processing Mortgagor requests,
beneficiary statements or demands, reasonable and customary consent fees, fees
in connection with defeasance, if any, and other customary charges, and amounts
collected for checks returned for insufficient funds, in each case only to the
extent actually paid by the related Mortgagor and shall not be required to
deposit such amounts in its Certificate Account or the Companion Distribution
Account pursuant to Section 3.04(a). Subject to Section 3.11(d), each Master
Servicer shall also be entitled to additional servicing compensation in the form
of: (i) Penalty Charges to the extent provided in Section 3.11(d), (ii) interest
or other income earned on deposits relating to the Trust Fund in its Certificate
Account or the Companion Distribution Account in accordance with Section 3.06(b)
(but only to the extent of the Net Investment Earnings, if any, with respect to
such account for the period from the prior P&I Advance Date to, but excluding,
the P&I Advance Date related to such Distribution Date), (iii) interest or other
income earned on deposits in the Servicing Account which are not required by
applicable law or the related Mortgage Loan to be paid to the Mortgagor and (iv)
the difference, if positive, between Prepayment Interest Excess and Prepayment
Shortfalls collected on the Mortgage Loans during the related Due Period to the
extent not required to be paid as Compensating Interest Payments as determined
on a Servicing Group basis. Each Master Servicer shall be required to pay out of
its own funds all expenses incurred by it in connection with its servicing
activities hereunder (including, without limitation, payment of any amounts due
and owing to any of its Sub-Servicers and the premiums for any blanket Insurance
Policy insuring against hazard losses pursuant to Section 3.07), if and to the
extent such expenses are not payable directly out of its Certificate Account and
such Master Servicer shall not be entitled to reimbursement therefor except as
expressly provided in this Agreement.
Notwithstanding anything herein to the contrary, Master Servicer No.
1 may at its option assign or pledge to any third party or retain for itself the
Transferable Servicing Interest; provided, however, that in the event of any
resignation or termination of such Master Servicer, all or any portion of the
Transferable Servicing Interest may be reduced by the Trustee to the extent
reasonably necessary (in the sole discretion of the Trustee) for the Trustee to
obtain a qualified successor Master Servicer (which successor may include the
Trustee) that meets the requirements of Section 6.04 and who requires market
rate servicing compensation that accrues at a per annum rate in excess of the
Retained Fee Rate, and any such assignment of the Transferable Servicing
Interest shall, by its terms be expressly subject to the terms of this Agreement
and such reduction. Master Servicer No. 1 shall pay the Transferable Servicing
Interest to the holder of the Transferable Servicing Interest at such time and
to the extent Master Servicer No. 1 is entitled to receive payment of its
Servicing Fees hereunder, notwithstanding any resignation or termination of
Master Servicer No. 1 hereunder (subject to reduction pursuant to the preceding
sentence).
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and REO Loan; provided, however, no
Special Servicing Fee will accrue on the Jordan Creek Loan Pair or the Brookdale
Office Portfolio Loan Pair solely due to an imminent event of default on the
related Loan Pair. As to each Specially Serviced Mortgage Loan and REO Loan, the
Special Servicing Fee shall accrue from time to time at the Special Servicing
Fee Rate and shall be computed on the basis of the Stated Principal Balance of
such Specially Serviced Mortgage Loan or REO Loan, as the case may be, and in
the same manner as interest is calculated on the Specially Serviced Mortgage
Loans or REO Loans, as the case may be, and, in connection with any partial
month interest payment, for the same period respecting which any related
interest payment due on such Specially Serviced Mortgage Loan or deemed to be
due on such REO Loan is computed. The Special Servicing Fee with respect to any
Specially Serviced Mortgage Loan or REO Loan shall cease to accrue if a
Liquidation Event occurs in respect thereof. The Special Servicing Fee shall be
payable monthly, on a loan-by-loan basis, in accordance with the provisions of
Section 3.05(a). The right to receive the Special Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement.
(c) Additional servicing compensation in the form of (i) 100% of all
fees with respect to application, assumption, extension, modification, waiver,
consent, earnout and all defeasance fees, in each case, received on any
Specially Serviced Mortgage Loans to the extent such fees are paid by the
Mortgagor, (ii) 50% of all application fees received on Non-Specially Serviced
Mortgage Loans and (iii) 50% of all assumption, extension, material
modification, waiver, consent and earnout fees pursuant to Section 3.08(a) and
3.08(b) or 3.20 received with respect to all Non-Specially Serviced Mortgage
Loans and for which the Special Servicer's consent or approval is required,
shall be promptly paid to the Special Servicer by the applicable Master Servicer
to the extent such fees are paid by the Mortgagor and shall not be required to
be deposited in the applicable Certificate Account pursuant to Section 3.04(a).
The Special Servicer shall also be entitled to additional servicing compensation
in the form of a Workout Fee with respect to each Corrected Mortgage Loan (other
than with respect to the Jordan Creek Loan Pair, the Brookdale Office Portfolio
Loan Pair or the Houston Galleria Whole Loan if such loan was a Specially
Serviced Mortgage Loan as a result of a Servicing Transfer Event under clause
(x) of the definition thereof that did not result in an actual (as opposed to
imminent) Event of Default) at the Workout Fee Rate 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 such loan again becomes
a Specially Serviced Mortgage Loan; provided that a new Workout Fee will become
payable if and when such Specially Serviced Mortgage Loan again becomes a
Corrected Mortgage Loan. If the Special Servicer is terminated (other than for
cause) or resigns, it shall retain the right to receive any and all Workout Fees
payable in respect of Mortgage Loans or Companion Loans that became Corrected
Mortgage Loans prior to the time of that termination or resignation except the
Workout Fees will no longer be payable if the Mortgage Loan subsequently becomes
a Specially Serviced Mortgage Loan. If the Special Servicer resigns or is
terminated (other than for cause), it will receive any Workout Fees payable on
Specially Serviced Mortgage Loans for which the resigning or terminated Special
Servicer had cured the event of default through a modification, restructuring or
workout negotiated by the Special Servicer and evidenced by a signed writing
with respect to which one (1) scheduled payment has been made, but which had not
as of the time the Special Servicer resigned or was terminated become a
Corrected Mortgage Loan solely because the Mortgagor had not had sufficient time
to make three consecutive timely Monthly Payments and which subsequently becomes
a Corrected Mortgage Loan as a result of the Mortgagor making such three
consecutive timely Monthly Payments. The successor Special Servicer will not be
entitled to any portion of such Workout Fees. The Special Servicer will not be
entitled to receive any Workout Fees after termination for cause. A Liquidation
Fee will be payable with respect to each Specially Serviced Mortgage Loan as to
which the Special Servicer receives any Liquidation Proceeds or Insurance and
Condemnation Proceeds subject to the exceptions set forth in the definition of
Liquidation Fee (such Liquidation Fee to be paid out of such Liquidation
Proceeds, Insurance and Condemnation Proceeds). Notwithstanding anything to the
contrary described above, no Liquidation Fee will be payable based on, or out
of, Liquidation Proceeds received in connection with the repurchase of any
Mortgage Loan by a Mortgage Loan Seller for a breach of representation or
warranty or for defective or deficient Mortgage Loan documentation so long as
such repurchase is completed within the period (including any extension thereof)
provided for such repurchase in this Agreement and the Mortgage Loan Purchase
Agreement, the purchase of any Specially Serviced Mortgage Loan, within the
first 90 days after the Special Servicer's initial determination of the fair
value of such Specially Serviced Mortgage Loan, by the Majority Controlling
Class Certificateholder or the Special Servicer, the purchase of any Specially
Serviced Mortgage Loan by the applicable Master Servicer or the purchase of all
of the Mortgage Loans and REO Properties in connection with an optional
termination of the Trust Fund pursuant to Section 9.01. If, however, Liquidation
Proceeds or Insurance and Condemnation Proceeds are received with respect to any
Corrected Mortgage Loan and the Special Servicer is properly entitled to a
Workout Fee, such Workout Fee will be payable based on and out of the portion of
such Liquidation Proceeds and Insurance and Condemnation Proceeds that
constitute principal and/or interest on such Mortgage Loan. Notwithstanding
anything herein to the contrary, the Special Servicer shall only be entitled to
receive a Liquidation Fee or a Workout Fee, but not both, with respect to
proceeds on any Mortgage Loan. Notwithstanding the foregoing, with respect to
any subordinate Companion Loan, the Liquidation Fee, Workout Fee and Special
Servicing Fees, if any, will be computed as provided in the related
Intercreditor Agreement or to the extent such Intercreditor Agreement is silent,
as provided herein as though such Companion Loan were a Mortgage Loan. Subject
to Section 3.11(d), the Special Servicer will also be entitled to additional
fees in the form of Penalty Charges to the extent provided in subsection (d).
The Special Servicer shall be required to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including,
without limitation, payment of any amounts, other than management fees in
respect of REO Properties, due and owing to any of its Sub-Servicers and the
premiums for any blanket Insurance Policy obtained by it insuring against hazard
losses pursuant to Section 3.07), if and to the extent such expenses are not
expressly payable directly out of the applicable Certificate Account or the REO
Account, and the Special Servicer shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement.
(d) In determining the compensation of the Master Servicers or
Special Servicer, as applicable, with respect to Penalty Charges, on any
Distribution Date, the aggregate Penalty Charges collected on any Mortgage Loan
since the prior Distribution Date shall be applied (in such order) to reimburse
(i) the applicable Master Servicer or the Trustee for interest on Advances on
such Mortgage Loan due on such Distribution Date, (ii) the Trust Fund for all
interest on Advances previously paid to the applicable Master Servicer or the
Trustee pursuant to Section 3.05(a)(vi) hereof with respect to such Mortgage
Loan and (iii) the Trust Fund for costs of all additional Trust Fund expenses
(including Special Servicing Fees, Workout Fees and Liquidation Fees), including
without limitation, inspections by the Special Servicer and all unpaid Advances
incurred since the Closing Date with respect to such Mortgage Loan; Penalty
Charges remaining thereafter shall be distributed to the applicable Master
Servicer, if and to the extent collected while the Mortgage Loan was a
Non-Specially Serviced Mortgage Loan and to the Special Servicer if and to the
extent actually collected on such Mortgage Loan during the period such Mortgage
Loan was a Specially Serviced Mortgage Loan. Notwithstanding the foregoing,
Penalty Charges with respect to any subordinate Companion Loan will be allocated
pursuant to the applicable Intercreditor Agreement after payment of all related
Advances and interest thereon.
Section 3.12 Inspections; Collection of Financial Statements. (a)
Each Master Servicer shall perform (at its own expense), or shall cause to be
performed (at its own expense), a physical inspection of each Mortgaged Property
securing a Mortgage Note that it is responsible for servicing hereunder with a
stated Principal Balance of (i) $2,000,000 or more at least once every 12 months
and (ii) less than $2,000,000 at least once every 24 months, in each case
commencing in the calendar year 2006 (and each Mortgaged Property shall be
inspected on or prior to December 2007); provided, however, that if a physical
inspection has been performed by the Special Servicer in the previous 12 months
and such Master Servicer has no knowledge of a material adverse change in the
Mortgaged Property since such physical inspection, such Master Servicer will not
be required to perform or cause to be performed, such physical inspection;
provided further, that if any scheduled payment becomes more than 60 days
delinquent on the related Mortgage Loan, the Special Servicer shall inspect or
cause to be inspected the related Mortgaged Property as soon as practicable
after such Mortgage Loan becomes a Specially Serviced Mortgage Loan and annually
thereafter for so long as such Mortgage Loan remains a Specially Serviced
Mortgage Loan. The cost of such inspection by the Special Servicer shall be an
expense of the Trust Fund, and to the extent not paid by the related Mortgagor
reimbursed first from Penalty Charges actually received from the related
Mortgagor and then from the applicable Certificate Account pursuant to Section
3.05(a)(ii). The Special Servicer or the applicable Master Servicer, as the case
may be, shall prepare or cause to be prepared a written report of each such
inspection detailing the condition of the Mortgaged Property and specifying the
existence of (i) any vacancy in the Mortgaged Property that the preparer of such
report deems material, (ii) any sale, transfer or abandonment of the Mortgaged
Property of which it has knowledge, (iii) any adverse change in the condition of
the Mortgaged Property that the preparer of such report deems material, (iv) any
visible material waste committed on the Mortgaged Property and (v) photographs
of each inspected Mortgaged Property. The Special Servicer and the applicable
Master Servicer shall deliver a copy of each such report prepared by the Special
Servicer and the applicable Master Servicer, respectively, to the other, to the
Directing Certificateholder and, upon request, to the Trustee and the Rating
Agencies within five (5) Business Days after request (or if such request is
received before such report is completed, within five (5) Business Days after
completion of such report). The Trustee shall deliver a copy of each such report
to the Controlling Class Certificateholder (and with respect to the Houston
Galleria Loan, the Houston Galleria Controlling Holder) upon request and to each
Holder of a Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
O, Class P, Class Q and Class NR Certificate, upon request (which such request
may state that such items be delivered until further notice).
(b) The Special Servicer, in the case of any Specially Serviced
Mortgage Loans, and the applicable Master Servicer, in the case of any
Non-Specially Serviced Mortgage Loans, shall make reasonable efforts to collect
promptly from each Mortgagor annual operating statements and rent rolls of the
related Mortgaged Property, financial statements of such Mortgagor and any other
reports required to be delivered under the terms of the Mortgage Loans (and each
Companion Loan), if delivery of such items is required pursuant to the terms of
the related Mortgage.
(c) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the applicable Master Servicer, in the case of any
Non-Specially Serviced Mortgage Loan shall make reasonable efforts to collect
promptly from each related Mortgagor quarterly and annual operating statements,
budgets and rent rolls of the related Mortgaged Property, and the quarterly and
annual financial statements of such Mortgagor, whether or not delivery of such
items is required pursuant to the terms of the related Mortgage. Each Master
Servicer shall not be required to request such statements more than once if the
related Mortgagor is not required to deliver such statements pursuant to the
terms of the Mortgage Loan documents. In addition, the Special Servicer shall
cause quarterly and annual operating statements, budgets and rent rolls to be
regularly prepared in respect of each REO Property and shall collect all such
items promptly following their preparation. The Special Servicer shall deliver
all such items to the applicable Master Servicer within five (5) Business Days
of receipt and such Master Servicer and the Special Servicer each shall deliver
copies of all the foregoing items so collected thereby to the Trustee, the
Directing Certificateholder and, upon request, to the Depositor and each other,
in each case within 60 days of its receipt thereof, but in no event, in the case
of annual statements, later than June 30 of each year commencing June 30, 2006.
The Trustee shall, upon request, deliver copies (in hard copy, electronic format
or make available on its Internet website) of the foregoing items to the
Underwriters, the Trustee, the Rating Agencies, the Controlling Class
Certificateholders, the Mortgage Loan Sellers or, to the extent the Certificate
Registrar has confirmed the Ownership Interest in Certificates held thereby, any
Certificate Owner, a copy (or image in suitable electronic media) of each such
report prepared by the applicable Master Servicer or the Special Servicer.
Within 45 days after receipt by the applicable Master Servicer, with
respect to Non-Specially Serviced Mortgage Loans it is responsible for servicing
hereunder, or the Special Servicer with respect to Specially Serviced Mortgage
Loans of any annual operating statements or rent rolls with respect to any
Mortgaged Property or REO Property, or if such date would be after June 30 of
any year, then within 30 days after receipt, such Master Servicer shall, based
upon such operating statements or rent rolls received, prepare (or, if
previously prepared, update) the analysis of operations and the CMSA NOI
Adjustment Worksheet and the CMSA Operating Statement Analysis Report. Upon the
occurrence and continuation of a Servicing Transfer Event, the applicable Master
Servicer shall provide the Special Servicer with all prior CMSA Operating
Statement Analysis Reports and CMSA NOI Adjustment Worksheets for the related
Mortgage Loan (including underwritten figures), and the Special Servicer's
obligations hereunder shall be subject to its having received all such reports.
The applicable Master Servicer and Special Servicer shall forward to the other
and the Directing Certificateholder electronically monthly all operating
statements and rent rolls received from any Mortgagor from the prior month. All
CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment Worksheets
shall be maintained by the applicable Master Servicer with respect to each
Mortgaged Property and REO Property, and such Master Servicer shall forward
copies (in hard copy, electronic format or make available on its Internet
website) thereof and the related operating statements or rent rolls (in each
case, promptly following the initial preparation and each material revision
thereof) to the Trustee (in electronic format only), the Directing
Certificateholder (and with respect to a Loan Pair, to the related Companion
Holder) and, upon written request, the Special Servicer. The Trustee shall, upon
request and to the extent such items have been delivered to the Trustee by the
applicable Master Servicer, deliver to the Underwriters, the Rating Agencies,
the Mortgage Loan Sellers, any Certificateholder or, to the extent the
Certificate Registrar has confirmed the Ownership Interest in the Certificates
held thereby, any Certificate Owner, a copy of such CMSA Operating Statement
Analysis Report (or update thereof) and CMSA NOI Adjustment Worksheet (or update
thereof), upon written request, and the related operating statement or rent
rolls. The applicable Master Servicer shall maintain a CMSA Operating Statement
Analysis Report and a CMSA NOI Adjustment Worksheet with respect to each
Mortgaged Property and REO Property.
(d) At or before 12:00 p.m. (New York City time) on each
Determination Date, the Special Servicer shall prepare and deliver or cause to
be delivered to the applicable Master Servicer the CMSA Special Servicer Loan
File with respect to the Specially Serviced Mortgage Loans and any REO
Properties, providing the information required of the Special Servicer in an
electronic format, reasonably acceptable to such Master Servicer as of the
Business Day preceding such Determination Date, which CMSA Special Servicer Loan
File shall include data, to enable such Master Servicer to produce the following
CMSA Supplemental Reports: (i) a CMSA Delinquent Loan Status Report, (ii) a CMSA
Historical Liquidation Report, (iii) a CMSA Historical Loan Modification and
Corrected Mortgage Loan Report, (iv) a CMSA REO Status Report, (v) a CMSA
Comparative Financial Status Report and (vi) a CMSA NOI Adjustment Worksheet and
a CMSA Operating Statement Analysis Report.
(e) Not later than 1:00 p.m. (New York City time) on the P&I Advance
Date, beginning in March 2006, the applicable Master Servicer shall prepare (if
and to the extent necessary) and deliver or cause to be delivered in electronic
format to the Trustee the following reports and data files: (i) to the extent
the applicable Master Servicer has received the CMSA Special Servicer Loan File
at the time required, the most recent CMSA Delinquent Loan Status Report, CMSA
Historical Liquidation Report, CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, and CMSA REO Status Report, (ii) the most recent CMSA
Property File, and CMSA Comparative Financial Status Report (in each case
incorporating, to the extent the Master Servicer has received the CMSA Special
Servicer Loan File, the data required to be included in the CMSA Special
Servicer Loan File pursuant to Section 3.12(d) by the Special Servicer and
Master Servicer), (iii) a CMSA Servicer Watch List with information that is
current as of such Determination Date, (iv) CMSA Financial File, (v) CMSA Loan
Level Reserve LOC Report, (vi) the Realized Loss Report and (vii) the CMSA
Advance Recovery Report. Not later than 2:00 p.m. (New York City time) two (2)
Business Days prior to the Distribution Date, the applicable Master Servicer
shall deliver or cause to be delivered to the Trustee via electronic format the
CMSA Loan Setup File (with respect to the first Distribution Date) and the CMSA
Loan Periodic Update File. In no event shall any report described in this
subsection be required to reflect information that has not been collected by or
delivered to the applicable Master Servicer, or any payments or collections not
received by the applicable Master Servicer, as of the Business Day prior to the
Business Day on which the report is due.
(f) The Special Servicer shall deliver to the Master Servicers the
reports required of the Special Servicer pursuant to Section 3.12(c) and Section
3.12(d), and each Master Servicer shall deliver to the Trustee the reports and
data files set forth in Section 3.12(e). Each Master Servicer may, absent
manifest error, conclusively rely on the reports and/or data to be provided by
the Special Servicer pursuant to Section 3.12(c) and Section 3.12(d). The
Trustee may, absent manifest error, conclusively rely on the reports and/or data
to be provided by each Master Servicer pursuant to Section 3.12(e). In the case
of information or reports to be furnished by any Master Servicer to the Trustee
pursuant to Section 3.12(e), to the extent that such information or reports are,
in turn, based on information or reports to be provided by the Special Servicer
pursuant to Section 3.12(c) or Section 3.12(d) and to the extent that such
reports are to be prepared and delivered by the Special Servicer pursuant to
Section 3.12(c) or Section 3.12(d), such Master Servicer shall have no
obligation to provide such information or reports to the Trustee until it has
received the requisite information or reports from the Special Servicer, and
such Master Servicer shall not be in default hereunder due to a delay in
providing the reports required by Section 3.12(e) caused by the Special
Servicer's failure to timely provide any information or report required under
Section 3.12(c) or Section 3.12(d) of this Agreement.
(g) Notwithstanding the foregoing, however, the failure of any
Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent such Master Servicer or Special Servicer so
fails because such disclosure, in the reasonable belief of such Master Servicer
or the Special Servicer, as the case may be, would violate any applicable law or
any provision of a Mortgage Loan document prohibiting disclosure of information
with respect to the Mortgage Loans or Mortgaged Properties. Each Master Servicer
and Special Servicer may disclose any such information or any additional
information to any Person so long as such disclosure is consistent with
applicable law and the Servicing Standards. Each Master Servicer or the Special
Servicer may affix to any information provided by it any disclaimer it deems
appropriate in its reasonable discretion (without suggesting liability on the
part of any other party hereto).
(h) Unless otherwise specifically stated herein, if any Master
Servicer or the Special Servicer is required to deliver any statement, report or
information under any provisions of this Agreement, such Master Servicer or the
Special Servicer, as the case may be, may satisfy such obligation by (x)
physically delivering a paper copy of such statement, report or information, (y)
delivering such statement, report or information in a commonly used electronic
format or (z) except with respect to information to be provided to the Trustee,
the Directing Certificateholder or any Companion Holder making such statement,
report or information available on such Master Servicer's or the Special
Servicer's Internet website, unless this Agreement expressly specifies a
particular method of delivery.
Notwithstanding the foregoing, each Master Servicer and the Special
Servicer shall deliver any statements, reports or other information to the
Trustee in an electronic format mutually agreeable to the Trustee and such
Master Servicer, or the Special Servicer as the case may be. Each Master
Servicer or the Special Servicer may physically deliver a paper copy of any such
statement, report or information as a temporary measure due to system problems.
Section 3.13 Annual Statement as to Compliance. Each of the Master
Servicers and the Special Servicer will deliver to the Trustee and the Rating
Agencies, with a copy to the Depositor, on or before March 15th of each year,
beginning March 15, 2006, an Officer's Certificate stating, as to each signer
thereof, that (i) a review of the activities of the applicable Master Servicer
or the Special Servicer, as the case may be, during the preceding calendar year
and of its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the applicable Master Servicer or the Special Servicer, as the case may be, has
fulfilled in all material respects its obligations under this Agreement
throughout such year, or, if there has been a material default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and (iii) the applicable Master
Servicer or the Special Servicer, as the case may be, has received no notice
regarding qualification, or challenging the status of the Lower-Tier REMIC or
the Upper-Tier REMIC as a REMIC from the Internal Revenue Service or any other
governmental agency or body or, if it has received any such notice, specifying
the details thereof. A copy of such Officer's Certificate may be obtained by
Certificateholders upon written request to the Trustee pursuant to Section 8.12
hereof. However, to the extent the Commission promulgates new rules with respect
to this annual statement of compliance that are required to be implemented with
respect to this Agreement, the form of the compliance statement required by this
Section 3.13 shall conform to the requirements of the Commission. Promptly after
receipt of such Officer's Certificates, the Depositor shall review such
Officer's Certificates and, if applicable, consult with each Master Servicer or
the Special Servicer, as applicable, as to the nature of any defaults by such
Master Servicer or the Special Servicer, as applicable, in the fulfillment of
any of such Master Servicer's or the Special Servicer's obligations.
Section 3.14 Reports by Independent Public Accountants. Each of the
Master Servicers and the Special Servicer at their own expense shall cause a
nationally recognized firm of independent certified public accountants to
furnish to the Trustee and each Rating Agency, with a copy to the Depositor on
or before March 15th of each year, commencing with March 15, 2006, a report
stating that (i) it has obtained from the applicable Master Servicer or the
Special Servicer, as the case may be, a letter of representation regarding
certain matters from the management of such Master Servicer or the Special
Servicer, as the case may be, which includes an assertion that such Master
Servicer or the Special Servicer, as the case may be, has complied with certain
minimum mortgage loan servicing standards (to the extent applicable to
commercial and multifamily mortgage loans), identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to such Master Servicer's or the Special
Servicer's, as the case may be, servicing of commercial and multifamily mortgage
loans during the most recently completed calendar year and (ii) on the basis of
an examination conducted by such firm in accordance with standards established
by the American Institute of Certified Public Accountants, such assertion is
fairly stated in all material respects, subject to such exceptions and other
qualifications that, in the opinion of such firm, such standards require it to
report. In rendering its report such firm may rely, as to the matters relating
to the direct servicing of commercial and multifamily mortgage loans by
Sub-Servicers, upon comparable reports of firms of independent certified public
accountants rendered during the previous 12 months on the basis of examinations
conducted in accordance with the same standards with respect to those
Sub-Servicers. However, to the extent the Commission promulgates new rules with
respect to these reports by firms of independent certified public accountants
that are required to be implemented with respect to this Agreement, the form of
these reports required by this Section 3.14 shall conform to the requirements of
the Commission. Promptly after receipt of such reports, the Depositor shall
review such reports and, if applicable, consult with each Master Servicer or the
Special Servicer, as applicable, as to the nature of any defaults by such Master
Servicer or the Special Servicer, as applicable, in the fulfillment of any of
such Master Servicer's or the Special Servicer's obligations.
Section 3.15 Access to Certain Information. Each of the Master
Servicers and the Special Servicer shall provide or cause to be provided to any
Certificateholder or Certificate Owner that is, or is affiliated with, a
federally insured financial institution, the Trustee, the Depositor, each
Mortgage Loan Seller, each Rating Agency, the Directing Certificateholder, any
Companion Holder, to the applicable Master Servicer, or to the Special Servicer,
as applicable, and to the OTS, the FDIC, the Federal Reserve Board and the
supervisory agents and examiners of such boards and such corporations, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, and to each Holder of a Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q
or Class NR Certificate, and to each Companion Holder (solely with respect to
the related AB Mortgage Loan or the Houston Galleria Whole Loan, as applicable)
access to any documentation or information regarding the Mortgage Loans and
related Companion Loans and the Trust Fund within its control which may be
required by this Agreement or by applicable law. At the election of each Master
Servicer or the Special Servicer, such access may be afforded to such Person
identified above by the delivery of copies of information as requested by such
Person and such Master Servicer or the Special Servicer shall be permitted to
require payment (other than from the Directing Certificateholder and the
Trustee) of a sum sufficient to cover the reasonable out-of-pocket costs
incurred by it in making such copies. Such access shall (except as described in
the preceding sentence) be afforded without charge but only upon reasonable
prior written request and during normal business hours at the offices of each
Master Servicer or the Special Servicer, as the case may be, designated by it;
provided, however, that Certificateholders and Certificate Owners shall be
required to pay their own photocopying costs and execute a reasonable and
customary confidentiality agreement with respect to such information. The
failure of any Master Servicer or the Special Servicer to provide access as
provided in this Section 3.15 as a result of a confidentiality obligation shall
not constitute a breach of this Section 3.15; provided, that nothing in this
paragraph shall provide a basis for not providing to the Directing
Certificateholder any information specifically required to be delivered to it
under the terms of this Agreement. The Master Servicers and the Special Servicer
may each deny any of the foregoing persons access to confidential information or
any intellectual property which such Master Servicer or the Special Servicer is
restricted by license or contract from disclosing. In connection with providing
access to information pursuant to this Section 3.15 to parties other than the
Trustee, each Master Servicer and the Special Servicer may each (i) affix a
reasonable disclaimer to any information provided by it for which it is not the
original source (without suggesting liability on the part of any other party
hereto); (ii) affix to any information provided by it a reasonable statement
regarding securities law restrictions on such information and/or condition
access to information on the execution of a reasonable confidentiality
agreement; (iii) withhold access to confidential information or any intellectual
property; and (iv) withhold access to items of information contained in the
Servicing File for any Mortgage Loan if the disclosure of such items is
prohibited by applicable law or the provisions of any related Mortgage Loan
documents or would constitute a waiver of the attorney-client privilege.
Notwithstanding any provision of this Agreement to the contrary, the failure of
any Master Servicer or the Special Servicer to disclose any information
otherwise required to be disclosed by it pursuant to this Agreement shall not
constitute a breach of this Agreement to the extent that such Master Servicer or
the Special Servicer, as the case may be, determines, in its reasonable good
faith judgment consistent with the applicable Servicing Standards, that such
disclosure would violate applicable law or any provision of a Mortgage Loan
document or Companion Loan document prohibiting disclosure of information with
respect to the Mortgage Loans or Companion Loans or the Mortgaged Properties,
constitute a waiver of the attorney-client privilege on behalf of the Trust or
the Trust Fund or otherwise materially harm the Trust or the Trust Fund.
Section 3.16 Title to REO Property; REO Account. (a) If title to any
REO Property is acquired, the deed or certificate of sale shall be issued to the
Trustee or a nominee thereof on behalf of the Certificateholders and, if
applicable, on behalf of the Companion Holders. The Special Servicer, on behalf
of the Trust Fund shall sell any REO Property prior to the close of the third
calendar year following the year in which the Trust Fund acquires ownership of
such REO Property, within the meaning of Treasury Regulations Section
1.856-6(b)(1), for purposes of Section 860G(a)(8) of the Code, unless the
Special Servicer either (i) is granted an extension of time (an "REO Extension")
by the Internal Revenue Service to sell such REO Property or (ii) obtains for
the Trustee and the applicable Master Servicer an Opinion of Counsel, addressed
to the Trustee and the applicable Master Servicer, to the effect that the
holding by the Trust Fund of such REO Property subsequent to the close of the
third calendar year following the year in which such acquisition occurred will
not cause the imposition of a tax on the Upper-Tier REMIC or the Lower-Tier
REMIC or cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC at any time that any Uncertificated Lower-Tier Interest or
Certificate is outstanding. If the Special Servicer is granted the REO Extension
contemplated by clause (i) of the immediately preceding sentence or obtains the
Opinion of Counsel contemplated by clause (ii) of the immediately preceding
sentence, the Special Servicer shall sell such REO Property within such longer
period as is permitted by such REO Extension or such Opinion of Counsel, as the
case may be. Any expense incurred by the Special Servicer in connection with its
being granted the REO Extension contemplated by clause (i) of the second
preceding sentence or its obtaining the Opinion of Counsel contemplated by
clause (ii) of the second preceding sentence, shall be an expense of the Trust
Fund payable out of the applicable Certificate Account pursuant to Section
3.05(a).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders and, if
applicable, on behalf of the Companion Holder(s), as their interest shall
appear, and the Trustee (as holder of the Class A-2FL Regular Interest and the
Uncertificated Lower-Tier Interests), for the retention of revenues and other
proceeds derived from each REO Property. The REO Account shall be an Eligible
Account. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, within 1 Business Day after receipt, all REO Revenues, Insurance
and Condemnation Proceeds and Liquidation Proceeds received in respect of an REO
Property. Funds in the REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall give notice to the
Trustee and the applicable Master Servicer of the location of the REO Account
when first established and of the new location of the REO Account prior to any
change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, insuring, leasing, maintenance
and disposition of any REO Property, but only to the extent of amounts on
deposit in the REO Account relating to such REO Property. On or prior to each
Determination Date, the Special Servicer shall withdraw from the REO Account and
remit to the applicable Master Servicer, which shall deposit into its related
Certificate Account (or such subaccount of the applicable Certificate Account
for each Companion Loan, as applicable), the aggregate of all amounts received
in respect of each REO Property during the most recently ended Due Period, net
of (i) any withdrawals made out of such amounts pursuant to the preceding
sentence and (ii) Net Investment Earnings on amounts on deposit in the REO
Account; provided, however, that the Special Servicer may retain in such REO
Account, in accordance with the Servicing Standards, such portion of such
balance as may be necessary to maintain a reasonable reserve for repairs,
replacements, leasing, management and tenant improvements and other related
expenses for the related REO Property. In addition, on or prior to each
Determination Date, the Special Servicer shall provide the applicable Master
Servicer with a written accounting of amounts remitted to such Master Servicer
for deposit in its related Certificate Account, as applicable, on such date. The
applicable Master Servicer shall apply all such amounts as instructed by the
Special Servicer on the Determination Date for the related Distribution Date.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property. (i) If title to any REO
Property is acquired, the Special Servicer shall manage, consent, protect,
operate and lease such REO Property for the benefit of the Certificateholders
and the Companion Holders, as applicable, and the Trustee (as holder of the
Class A-2FL Regular Interest and the Uncertificated Lower-Tier Interests) solely
for the purpose of its timely disposition and sale in a manner that does not
cause such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code or result in the receipt by the Trust
Fund of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code. Subject to the foregoing, however, the Special
Servicer shall have full power and authority to do any and all things in
connection therewith as are in the best interests of and for the benefit of the
Certificateholders (and, in the case of each Loan Pair, the related Companion
Holder(s)) and the Trustee (as holder of the Class A-2FL Regular Interest and
the Uncertificated Lower-Tier Interests) all as a collective whole (as
determined by the Special Servicer in its reasonable judgment in accordance with
the Servicing Standards and any related Intercreditor Agreements). Subject to
this Section 3.17, the Special Servicer may allow the Trust Fund to earn "net
income from foreclosure property" within the meaning of Section 860G(d) of the
Code if it determines that earning such income is in the best interests of
Certificateholders and, if applicable, any related Companion Holder(s) on a net
after-tax basis as compared with net leasing such REO Property or operating such
REO Property on a different basis. In connection therewith, the Special Servicer
shall deposit or cause to be deposited on a daily basis (and in no event later
than 1 Business Day following receipt of such funds) in the applicable REO
Account all revenues received by it with respect to each REO Property and the
related REO Loan, and shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, leasing and maintenance of such REO
Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such REO
Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the applicable Master Servicer
(subject to receiving notice from the Special Servicer in accordance with the
procedures set forth elsewhere in this Agreement) shall advance from its own
funds such amount as is necessary for such purposes unless (as evidenced by an
Officer's Certificate delivered to the Trustee, the Depositor and the Directing
Certificateholder) such advances would, if made, constitute Nonrecoverable
Servicing Advances.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the applicable Master Servicer as a
Servicing Advance) to the effect that such action will not cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code at any time that it is held for the benefit of
the Trust Fund, in which case the Special Servicer may take such actions as are
specified in such Opinion of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated to manage and supervise
such Independent Contractor in accordance with the Servicing Standards.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the applicable Master Servicer a statement prepared by the Special
Servicer setting forth the amount of net income or net loss, as determined for
federal income tax purposes, resulting from the operation and management of a
trade or business on, the furnishing or rendering of a non-customary service to
the tenants of, or the receipt of any other amount not constituting Rents from
Real Property in respect of, any REO Property in accordance with Sections
3.17(a) and 3.17(b).
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
(a) (i) Within thirty (30) days after a Mortgage Loan has become a
Specially Serviced Mortgage Loan with respect to any Defaulted Mortgage Loan,
the Special Servicer shall order an Appraisal (but shall not be required to be
received) and within thirty (30) days of receipt of the Appraisal shall
determine the fair value of such Defaulted Mortgage Loan in accordance with the
Servicing Standards; provided, however, that such determination shall be made
without taking into account any effect the restrictions on the sale of such
Mortgage Loan contained herein may have on the value of such Defaulted Mortgage
Loan; provided further, that if the Special Servicer is then in the process of
obtaining an Appraisal with respect to the related Mortgaged Property, the
Special Servicer shall make its fair value determination as soon as reasonably
practicable (but in any event within thirty (30) days) after its receipt of such
an Appraisal. The Special Servicer may, from time to time, adjust its fair value
determination based upon changed circumstances, new information and other
relevant factors, in each instance in accordance with a review of such
circumstances and new information in accordance with the Servicing Standards,
conducted not less often than every 90 days. The Special Servicer shall notify
the Trustee, the Master Servicers and the Certificateholder that owns the
largest aggregate Certificate Balance of the Controlling Class (the "Controlling
Class Option Holder"), promptly upon its making a fair value determination and
any subsequent adjustment thereto. The Special Servicer shall also deliver to
the Master Servicers, the Rating Agencies and the Controlling Class Option
Holder (to the extent such parties have not already received), the most recent
Appraisal of the related Mortgaged Property then in the Special Servicer's
possession, together with such other third-party reports and other information
then in the Special Servicer's possession that the Special Servicer reasonably
believes to be relevant to the fair value determination with respect to such
Mortgage Loan (such materials are, collectively, the "Determination
Information"). If the Special Servicer will not be determining whether the
Option Price represents fair value of the Defaulted Mortgage Loan, pursuant to
the second to last paragraph of Section 3.18(a)(iv), the Special Servicer shall
also deliver the Determination Information to the Trustee.
In determining the fair value of any Defaulted Mortgage Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Mortgage Loan, the occupancy level and
physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property. In addition, the Special Servicer shall refer to the Determination
Information and all other relevant information obtained by it or otherwise
contained in the Mortgage File; provided, that the Special Servicer shall take
account of any change in circumstances regarding the related Mortgaged Property
known to the Special Servicer that has occurred subsequent to, and that would,
in the Special Servicer's reasonable judgment, materially affect the value of
the related Mortgaged Property reflected in, the most recent related Appraisal.
Furthermore, the Special Servicer shall consider all available objective
third-party information obtained from generally available sources, as well as
information obtained from vendors providing real estate services to the Special
Servicer, concerning the market for distressed real estate loans and the real
estate market for the subject property type in the area where the related
Mortgaged Property is located. The Special Servicer may conclusively rely on the
opinion and reports of independent third parties in making such determination.
(ii) Subject to the terms and conditions of clauses (d), (e), (f)
and (g) of this Section 3.18, at the time a Mortgage Loan becomes a
Defaulted Mortgage Loan, the Special Servicer and Controlling Class Option
Holder (each, together with their assignees, an "Option Holder") will have
an assignable option (the "Purchase Option") to purchase such Defaulted
Mortgage Loan from the Trust Fund at a price (the "Option Price") equal to
(A) if the Special Servicer has not yet determined the fair value of such
Defaulted Mortgage Loan, the sum of (1) the Stated Principal Balance
thereof, together with all accrued and unpaid interest thereon at the
Mortgage Rate, (2) any related Yield Maintenance Charge or prepayment
premium then payable (except if the Purchase Option is exercised by the
Controlling Class Option Holder), (3) all related Advances for which the
Trust Fund or the related Master Servicer has not been reimbursed,
together with all accrued and unpaid interest thereon at the Reimbursement
Rate to the extent not included in (1) above, and (4) all accrued Special
Servicing Fees and additional Trust Fund expenses allocable to such
Defaulted Mortgage Loan whether recovered or unrecovered from the related
Mortgagor or (B) if the Special Servicer has determined the fair value of
such Defaulted Mortgage Loan pursuant to clause (i) above, an amount at
least equal to such fair value. Notwithstanding the foregoing, for a
period of sixty (60) days after it receives notice of the Special
Servicer's fair value determination (the "Controlling Class
Certificateholder's Option Period"), only the Purchase Option held by the
Controlling Class Option Holder may be exercised.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Mortgage Loan to any party
at any time after the related Mortgage Loan becomes a Defaulted Mortgage
Loan. The transferor of any Purchase Option shall notify the Trustee and
the Master Servicers of such transfer and such notice shall include the
transferee's name, address, telephone number, facsimile number and
appropriate contact person(s) and shall be acknowledged in writing by the
transferee.
Each Option Holder's Purchase Option with respect to any Defaulted
Mortgage Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan;
provided, however, that if such Mortgage Loan subsequently becomes a
Defaulted Mortgage Loan, the related Purchase Option shall again be
exercisable, (B) upon the acquisition, by or on behalf of the Trust Fund,
of title to the related Mortgaged Property through foreclosure or deed in
lieu of foreclosure, (C) upon the modification or pay-off, in full or at a
discount, of such Defaulted Mortgage Loan in connection with a workout or
(D) subject to the applicable Master Servicer's determination set forth in
clause (iv) below, upon another Option Holder's exercise of its Purchase
Option with respect to the related Mortgage Loan becoming effective
pursuant to clause (iii) below.
(iii) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Mortgage Loan, and after the
expiration of the Controlling Class Certificateholder's Option Period,
each Option Holder (whether the original grantee of such option or any
subsequent transferee) may exercise its Purchase Option by providing the
Master Servicers and the Trustee written notice thereof (the "Purchase
Option Notice"), in the form of Exhibit J, which notice shall identify the
Person that, on its own or through an Affiliate, will acquire the related
Mortgage Loan upon closing and shall specify a cash exercise price at
least equal to the Option Price. The Purchase Option Notice shall be
delivered in the manner specified in Section 11.05. Immediately upon
receipt of such Purchase Option Notice, the Special Servicer shall notify
the remaining Option Holders that a Purchase Option has been exercised.
Within ten (10) days thereafter, each remaining Option Holder may submit
to the Special Servicer a Purchase Option Notice for the related Defaulted
Mortgage Loan. Upon the expiration of such ten (10) day period, or such
sooner time as all remaining Option Holders have submitted Purchase Option
Notices, the Special Servicer shall notify the Option Holder whose
Purchase Option Notice included the highest exercise price that the
exercise of its Purchase Option is effective. The Special Servicer shall
also notify the Trustee of such effective exercise. In the event that more
than one Option Holder exercises its Purchase Option at the same price,
the Purchase Option Notice first received by the Special Servicer shall be
effective. The exercise of any Purchase Option pursuant to this clause
(iii) shall be irrevocable; provided that the assignor of the Purchase
Option shall have no liability to the Trust or any other party hereto for
the failure of its third party assignee to close the sale of the Defaulted
Mortgage Loan after its exercise of the option, and upon such failure, the
Purchase Option shall revert to the Option Holder as provided herein as if
the Purchase Option had not been exercised, and the Special Servicer shall
pursue against such assignee whatever remedies it may have against the
assignee.
(iv) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, the applicable Master Servicer shall determine as soon as
reasonably practicable (and, in any event, within thirty (30) days) after
such Master Servicer has received the written notice and the Determination
Information to be provided to such Master Servicer by the Special Servicer
under Section 3.18(a)(i), whether the Option Price represents fair value
for the Defaulted Mortgage Loan; provided, that, if the Special Servicer
is then in the process of obtaining a new Appraisal with respect to the
related Mortgaged Property, then such Master Servicer shall make its fair
value determination with respect to such Mortgage Loan as soon as
reasonably practicable (but in any event within thirty (30) days) after
such Master Servicer's receipt of such new Appraisal. Such fair value
determination shall be made in accordance with the Servicing Standards. In
determining the fair value of any Defaulted Mortgage Loan, the applicable
Master Servicer shall take into account, among other factors, the period
and amount of the delinquency on such Mortgage Loan, the occupancy level
and physical condition of the related Mortgaged Property, the state of the
local economy in the area where the Mortgaged Property is located, and the
time and expense associated with a purchaser's foreclosing on the related
Mortgaged Property. In addition, the applicable Master Servicer shall
refer to the Determination Information and all other relevant information
delivered to it by the Special Servicer or otherwise contained in the
Mortgage File; provided, that such Master Servicer shall take account of
any change in circumstances regarding the related Mortgaged Property known
to such Master Servicer that has occurred subsequent to, and that would,
in such Master Servicer's reasonable judgment, materially affect the value
of the related Mortgaged Property reflected in, such appraisal.
Furthermore, the applicable Master Servicer shall consider all available
objective third-party information obtained from generally available
sources, as well as information obtained from vendors providing real
estate services to the applicable Master Servicer, concerning the market
for distressed real estate loans and the real estate market for the
subject property type in the area where the related Mortgaged Property is
located. The applicable Master Servicer may conclusively rely on the
opinion and reports of independent third parties in making such
determination. Master Servicer No. 1 shall be entitled to receive out of
the Certificate Account as additional compensation a $1,000 fee plus
reasonable out of pocket costs and expenses for the determination made in
accordance with this clause (iv) and Master Servicer No. 2 shall be
entitled to receive out of the Certificate Account as additional
compensation a $2,500 fee plus reasonable out of pocket costs and expenses
for the determination made in accordance with this clause, provided,
however, with respect to any Mortgage Loan, the $1,000 fee or $2,500 fee,
as applicable, shall be collectible only once. The reasonable cost of all
third party consultants and related reports (in the event that such
inspection report is pursuant to this Section 3.18 and not an annual
inspection pursuant to Section 3.12), including but not limited to
appraisals, inspection reports and broker opinions of value, reasonably
incurred by the Special Servicer or the applicable Master Servicer
pursuant to this Section 3.18(a) shall constitute, and be reimbursable as,
Servicing Advances; provided, that the Special Servicer or the applicable
Master Servicer may rely on the most current Appraisal and property
inspection report obtained for the related Mortgaged Property pursuant to
Section 3.12. The other parties to this Agreement shall cooperate with all
reasonable requests for information.
Notwithstanding anything contained in this clause (iv) to the
contrary, if the Special Servicer or the Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, and the applicable Master Servicer and the Special Servicer
are Affiliates, the Trustee, subject to the Directing Certificateholder's
reasonable prior written consent, which consent shall not be unreasonably
withheld, shall designate an Independent third party, independent of the
Directing Certificateholder, to determine whether the Option Price
represents fair value for the Defaulted Mortgage Loan, in the manner and
within the time set forth in the first paragraph of this clause (iv). In
the event that the Trustee is called upon to designate such a third party
to make such determination, the Trustee will not assume any responsibility
for such third party's determination which determination the Trustee shall
be entitled to conclusively rely upon. Master Servicer No. 1, at the
direction of the Trustee, may pay such third party a fee of up to $1,000
out of the Certificate Account and Master Servicer No. 2, at the direction
of the Trustee, may pay such third party a fee of $2,500 out of the
Certificate Account. The reasonable costs of such Independent third party
appraisals, all inspection reports and broker opinions of value,
reasonably incurred by the Trustee or any such third party pursuant to
this paragraph shall be advanced by the applicable Master Servicer and
shall constitute, and be reimbursable as, Servicing Advances. In
connection with the Trustee's designating an Independent third party, the
Special Servicer shall deliver to the Trustee for such Independent third
party's use the Determination Information.
In the event the applicable Master Servicer or any designated third
party, as applicable, determines that the Option Price is less than the
fair value of the Defaulted Mortgage Loan, such party shall provide its
determination, together with all information and reports it relied upon in
making such determination, to the Special Servicer, who may then adjust
its fair value determination and, consequently, the Option Price, pursuant
to Section 3.18(a)(i). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose
Purchase Option has been declared effective pursuant to clause (iii)
above. Upon receipt of such notice, such Option Holder shall have three
(3) Business Days to (i) accept the Option Price as adjusted and proceed
in accordance with clause (v) below, or (ii) reject the Option Price as
adjusted, in which case such Option Holder shall not be obligated to close
the purchase of the Defaulted Mortgage Loan. Upon notice from such Option
Holder, or the Special Servicer, that such Option Holder rejects the
Option Price as adjusted, the applicable Master Servicer and the Trustee
shall provide the notices described in the second paragraph of clause (v)
below and thereafter any Option Holder may exercise its purchase option in
accordance with Section 3.18(a), at the Option Price as adjusted.
(v) The Option Holder whose Purchase Option is declared effective
pursuant to clause (iii) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the applicable Master Servicer
within ten (10) Business Days of its receipt of the Special Servicer's
notice confirming that the exercise of its Purchase Option is effective.
Upon receipt of an Officer's Certificate from the Special Servicer
specifying the date for closing the purchase of the related Defaulted
Mortgage Loan, and the purchase price to be paid therefor, the Trustee
shall deliver at such closing for release to or at the direction of such
Option Holder, the related Mortgage File, and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse,
as shall be provided to it by such Option Holder and are reasonably
necessary to vest in the purchaser or any designee thereof the ownership
of such Mortgage Loan on a servicing released basis. In connection with
any such purchase by any Person other than it, the Special Servicer shall
deliver the related Mortgage File to or at the direction of the purchaser.
In any case, the applicable 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 applicable Certificate Account within one (1) Business Day
following the closing of the sale of the related Defaulted Mortgage Loan.
The Master Servicer shall immediately notify the Trustee and the
Special Servicer upon the holder of the effective Purchase Option's
failure to remit the purchase price specified in its Purchase Option
Notice pursuant to this clause (v). Thereafter, the Trustee shall notify
each Option Holder of such failure and any Option Holder may then exercise
its purchase option in accordance with this Section 3.18(a).
(vi) Unless and until the Purchase Option with respect to any
Defaulted Mortgage Loan is exercised or expires, the Special Servicer
shall pursue such other resolution strategies with respect to such
Defaulted Mortgage Loan, including, without limitation, workout and
foreclosure, as the Special Servicer may deem appropriate, consistent with
the Asset Status Report and the Servicing Standards and the REMIC
Provisions; provided, however, the Special Servicer shall not sell any
Defaulted Mortgage Loan (other than in connection with exercise of a
related Purchase Option or as otherwise permitted in this Section 3.18).
(b) (i) The Special Servicer may purchase any REO Property (at the
Purchase Price therefor) (in the case of a Loan Pair, such purchase shall be a
purchase of the entire REO Property, including the portion relating to the
Companion Loans). The Special Servicer may also offer to sell to any Person any
REO Property (in the case of a Loan Pair, such sale shall be a sale of the
entire REO Property, including the portion relating to the Companion Loans), if
and when the Special Servicer determines, consistent with the Servicing
Standards, that such a sale would be in the best economic interests of the Trust
Fund and the Companion Holders. The Special Servicer shall give the Trustee, the
applicable Master Servicer, each related Companion Holder and the Directing
Certificateholder not less than five (5) Business Days' prior written notice of
the Purchase Price and its intention to (i) purchase any REO Property at the
Purchase Price therefor or (ii) sell any REO Property, in which case the Special
Servicer shall accept the highest offer received from any Person for any REO
Property in an amount at least equal to the Purchase Price therefor. To the
extent permitted by applicable law, and subject to the Servicing Standards, the
applicable Master Servicer, an Affiliate of such Master Servicer, the Special
Servicer or an Affiliate of the Special Servicer, or an employee of either of
them may act as broker in connection with the sale of any REO Property and may
retain from the proceeds of such sale a brokerage commission that does not
exceed the commission that would have been earned by an independent broker
pursuant to a brokerage agreement entered into at arm's length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the
Special Servicer to be a fair price for such REO Property, if the highest
bidder is a Person other than an Interested Person, or if such price is
determined to be such a price by the Trustee, if the highest bidder is an
Interested Person. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates
may make an offer for or purchase any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the
Special Servicer determines, in accordance with the Servicing Standards,
that rejection of such offer would be in the best interests of the
Certificateholders. In addition, the Special Servicer may accept a lower
offer if it determines, in accordance with the Servicing Standards, that
acceptance of such offer would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower
offer is more likely to perform its obligations, or the terms offered by
the prospective buyer making the lower offer are more favorable).
In determining whether any offer received from an Interested Person
represents a fair price for any REO Property, the Trustee shall obtain and
may conclusively rely on the opinion of an Independent appraiser or other
Independent expert in real estate matters retained by the Trustee at the
expense of the Trust Fund. In determining whether any offer constitutes a
fair price for any REO Property, the Special Servicer or the Trustee (or,
if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into
account, as applicable, among other factors, the physical condition of
such REO Property, the state of the local economy and the Trust Fund's
obligation to comply with REMIC Provisions.
(ii) Subject to the Servicing Standards, the Special Servicer shall
act on behalf of the Trust Fund and the Companion Holders in negotiating
and taking any other action necessary or appropriate in connection with
the sale of any REO Property, including the collection of all amounts
payable in connection therewith. A sale of any REO Property shall be
without recourse to, or representation or warranty by, the Trustee, the
Depositor, the applicable Master Servicer, the Special Servicer, or the
Trust Fund (except that any contract of sale and assignment and conveyance
documents may contain customary warranties of title, so long as the only
recourse for breach thereof is to the Trust Fund) and, if consummated in
accordance with the terms of this Agreement, none of the applicable Master
Servicer, the Special Servicer, the Depositor or the Trustee shall have
any liability to the Trust Fund or any Certificateholder or Companion
Holder with respect to the purchase price therefor accepted by the Special
Servicer or the Trustee.
(c) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(d) Notwithstanding anything in this Section 3.18 to the contrary,
pursuant to the terms of the related Intercreditor Agreement, the Companion
Holder will have the right to purchase the related AB Mortgage Loan (or the
Houston Galleria Loan), as applicable, or related REO Property. With respect to
each AB Mortgage Loan (or the Houston Galleria Loan), such right of the
Companion Holder shall be given priority over any provision described in this
Section 3.18, subject, to the extent applicable, to any rights of a mezzanine
lender as set forth in Section 3.18(e). If the AB Mortgage Loan (or the Houston
Galleria Loan) or REO Property is purchased by the Companion Holder, repurchased
by the applicable Mortgage Loan Seller or otherwise ceases to be subject to this
Agreement, the related Companion Loan will no longer be subject to this
Agreement. None of the Trustee, the Master Servicers or the Trust Fund shall
acquire a Companion Loan.
(e) Notwithstanding anything in this Section 3.18 to the contrary,
any mezzanine lender will have the right to purchase the related Mortgage Loan
and cure defaults relating thereto as and to the extent set forth in the related
mezzanine intercreditor agreement.
(f) In the event any Master Servicer or the Special Servicer has the
right to purchase any Companion Loan on behalf of the Trust pursuant to the
related Intercreditor Agreement, neither such Master Servicer nor the Special
Servicer shall exercise such right.
(g) Notwithstanding anything in this Section 3.18 to the contrary,
if the Houston Galleria Trust Subordinate Companion Loan is a Specially Serviced
Mortgage Loan that becomes a Defaulted Mortgage Loan, the Special Servicer shall
promptly notify in writing the applicable Master Servicer, and the Trustee,
following its receipt of such notice, shall promptly notify the holders of the
Houston Galleria Companion Loans and the Class HG Certificates. Upon receipt of
such notice (the "Houston Galleria Repurchase Option Notice"), the Houston
Galleria Controlling Holder and the holder of the Houston Galleria Non-Trust
Subordinate Companion Loan will have the option (the "Houston Galleria Purchase
Option"), but not the obligation, to purchase the Houston Galleria Pari Passu
Loans (and if such option is exercised by the holder(s) of the Houston Galleria
Trust Subordinate Companion Loan, the Houston Galleria Non-Trust Subordinate
Companion Loan), together and not individually, pursuant to the terms of the
Houston Galleria Intercreditor Agreement. If the Houston Galleria Controlling
Holder and the holder of the Houston Galleria Non-Trust Subordinate Companion
Loan fail to exercise such Houston Galleria Purchase Option within 90 days after
receiving Houston Galleria Repurchase Option Notice in accordance with the
Houston Galleria Intercreditor Agreement, the Houston Galleria Purchase Option
shall terminate, and the Houston Galleria Loan and the Houston Galleria Trust
Subordinate Companion Loan may be sold in accordance with this Section 3.18. Any
party that exercises the Purchase Option pursuant to this Section 3.18 with
respect to the Houston Galleria Loan shall also be required to purchase the
Houston Galleria Companion Loans and the Houston Galleria Trust Subordinate
Companion Loan at the related option price set forth in the related
Intercreditor Agreement; provided, however, the price for the Houston Galleria
Non-Trust Subordinate Companion Loans shall be the "Defaulted Mortgage Loan
Purchase Price" as defined in the Houston Galleria Intercreditor Agreement.
Section 3.19 Additional Obligations of the Applicable Master
Servicer and Special Servicer. (a) The applicable Master Servicer shall deliver
all Compensating Interest Payments on the Mortgage Loans that it is responsible
for servicing hereunder to the Trustee for deposit in the Distribution Account
on each P&I Advance Date, without any right of reimbursement therefor.
(b) The applicable Master Servicer shall provide to each Companion
Holder any reports or notices required to be delivered to such Companion Holder
pursuant to the related Intercreditor Agreement.
(c) Upon the determination that a previously made Advance is a
Nonrecoverable Advance, to the extent that the reimbursement thereof would
exceed the full amount of the principal portion of general collections on the
Mortgage Loans (other than, the Houston Galleria Trust Subordinate Companion
Loan (except in the case of Advances with respect to the Houston Galleria Loan))
deposited in the applicable Certificate Account and available for distribution
on the next Distribution Date, the applicable Master Servicer or the Trustee,
each at its own option and in its sole discretion, as applicable, instead of
obtaining reimbursement for the remaining amount of such Nonrecoverable Advance
pursuant to Section 3.05(a)(v) immediately, as an accommodation may elect to
refrain from obtaining such reimbursement for such portion of the Nonrecoverable
Advance during the one month collection period ending on the then current
Determination Date, for successive one-month periods for a total period not to
exceed 12 months. If any Master Servicer (or the Trustee) makes such an election
at its sole option and in its sole discretion to defer reimbursement with
respect to all or a portion of a Nonrecoverable Advance (together with interest
thereon), then such Nonrecoverable Advance (together with interest thereon) or
portion thereof shall continue to be fully reimbursable in the subsequent
collection period (subject, again, to the same sole option to defer; it is
acknowledged that, in such a subsequent period, such Nonrecoverable Advance
shall again be payable first from principal collections as described above prior
to payment from other collections). In connection with a potential election by
any Master Servicer (or the Trustee) to refrain from the reimbursement of a
particular Nonrecoverable Advance or portion thereof during the one month
collection period ending on the related Determination Date for any Distribution
Date, such Master Servicer (or the Trustee) shall further be authorized to wait
for principal collections on the Mortgage Loans to be received before making its
determination of whether to refrain from the reimbursement of a particular
Nonrecoverable Advance or portion thereof) until the end of such collection
period; provided, however, if, at any time the applicable Master Servicer or the
Trustee, as the case may be, elects not to refrain from obtaining such
reimbursement or otherwise determines that the reimbursement of a Nonrecoverable
Advance during a one-month collection period will exceed the full amount of the
principal portion of general collections deposited in the Certificate Account
for such Distribution Date, then the applicable Master Servicer or the Trustee,
as the case may be, shall use its reasonable efforts to give S&P, Xxxxx'x and
Fitch 15 days' notice of such determination, unless (1) the Master Servicer or
the Trustee, as applicable, determines in its sole discretion that waiting 15
days after such a notice could jeopardize the Master Servicer's or the Trustee's
ability, as applicable, to recover such Nonrecoverable Advances, (2) changed
circumstances or new or different information becomes known to the Master
Servicer or the Trustee, as applicable, that could affect or cause a
determination of whether any Advance is a Nonrecoverable Advance, whether to
defer reimbursement of a Nonrecoverable Advance or the determination in clause
(1) above, or (3) the Master Servicer has not timely received from the Trustee
information requested by the Master Servicer to consider in determining whether
to defer reimbursement of a Nonrecoverable Advance; provided that, if clause
(1), (2) or (3) apply, the Master Servicer or the Trustee, as applicable, shall
give Xxxxx'x, S&P and Fitch notice of an anticipated reimbursement to it of
Nonrecoverable Advances from amounts in the Certificate Account or Distribution
Account, as applicable, allocable to interest on the Mortgage Loans as soon as
reasonably practicable in such circumstances. The applicable Master Servicer and
the Trustee, as the case may be, shall have no liability for any loss, liability
or expense resulting from any notice provided to Xxxxx'x, S&P and Fitch
contemplated by the immediately preceding sentence. Nothing herein shall give
any Master Servicer or the Trustee the right to defer reimbursement of a
Nonrecoverable Advance to the extent of any principal collections then available
in the applicable Certificate Account pursuant to Section 3.05(a)(v).
The foregoing shall not, however, be construed to limit any
liability that may otherwise be imposed on such Person for any failure by such
Person to comply with the conditions to making such an election under this
section or to comply with the terms of this section and the other provisions of
this Agreement that apply once such an election, if any, has been made;
provided, however, that the fact that a decision to recover such Nonrecoverable
Advances over time, or not to do so, benefits some classes of Certificateholders
to the detriment of other classes shall not, with respect to any Master Servicer
or the Special Servicer, as applicable, constitute a violation of the Servicing
Standards and/or with respect to the Trustee, constitute a violation of any
fiduciary duty to Certificateholders or any contractual obligation hereunder. If
any Master Servicer or the Trustee, as applicable, determines, in its sole
discretion, that its ability to fully recover the Nonrecoverable Advances has
been compromised, then such Master Servicer or the Trustee, as applicable, shall
be entitled to immediate reimbursement of Nonrecoverable Advances with interest
thereon at the Reimbursement Rate from all amounts in its Certificate Account or
such other Master Servicer's Certificate Account (if amounts in such Master
Servicer's Certificate Account are not sufficient for such reimbursement) for
such Distribution Date (deemed first from principal and then interest). Any such
election by any such party to refrain from reimbursing itself or obtaining
reimbursement for any Nonrecoverable Advance or portion thereof with respect to
any one or more collection periods shall not limit the accrual of interest at
the Reimbursement Rate on such Nonrecoverable Advance for the period prior to
the actual reimbursement of such Nonrecoverable Advance. The applicable Master
Servicer's or the Trustee's, as the case may be, agreement to defer
reimbursement of such Nonrecoverable Advances as set forth above is an
accommodation to the Certificateholders and shall not be construed as an
obligation on the part of such Master Servicer or the Trustee, as applicable, or
a right of the Certificateholders. Nothing herein shall be deemed to create in
the Certificateholders a right to prior payment of distributions over the
applicable Master Servicer's or the Trustee's, as applicable, right to
reimbursement for Advances (deferred or otherwise) and accrued interest thereon.
In all events, the decision to defer reimbursement or to seek immediate
reimbursement of Nonrecoverable Advances shall be deemed to be in accordance
with the Servicing Standards and none of the Master Servicers or the Trustee or
the other parties to this Agreement shall have any liability to one another or
to any of the Certificateholders or any of the Companion Holders for any such
election that such party makes as contemplated by this section or for any
losses, damages or other adverse economic or other effects that may arise from
such an election.
Section 3.20 Modifications, Waivers, Amendments and Consents. (a)
Except as set forth in Section 3.08(a), Section 3.08(b), Section 3.08(f), this
Section 3.20(a), Section 3.20(d), and Section 3.20(i), but subject to any other
conditions set forth thereunder, and, with respect to an AB Mortgage Loan and
the Houston Galleria Whole Loan, subject to the rights of the related Companion
Holder or Houston Galleria Controlling Holder, as applicable, to advise the
applicable Master Servicer with respect to, or consent to, a modification,
waiver or amendment pursuant to the terms of the related Intercreditor
Agreement, the Master Servicers shall not modify, waive or amend a Mortgage Loan
and/or a Companion Loan without the prior written consent of the Special
Servicer; provided, that the applicable Master Servicer shall forward to the
Special Servicer requests to extend the maturity date of a Mortgage Loan and/or
Companion Loan that is not a Specially Serviced Mortgage Loan, and the Special
Servicer may approve such request, provided further, that except as provided in
the following sentence, no such extension entered into pursuant to this Section
3.20(a) shall extend the Maturity Date beyond the earlier of (i) two years prior
to the Rated Final Distribution Date and (ii) in the case of a Mortgage Loan
secured by a leasehold estate and not also the related fee interest, the date
twenty years or, to the extent consistent with the Servicing Standards giving
due consideration to the remaining term of the ground lease, ten years, prior to
the expiration of such leasehold estate. If such extension would extend the
Maturity Date of a Mortgage Loan and/or Companion Loan for more than twelve
months from and after the original Maturity Date of such Mortgage Loan and/or
Companion Loan and such Mortgage Loan and/or Companion Loan is not in default or
default with respect thereto is not reasonably foreseeable, the applicable
Master Servicer must provide the Trustee, the Special Servicer and the Directing
Certificateholders with an Opinion of Counsel (at the expense of the related
Mortgagor to the extent permitted under the Mortgage Loan documents and, if not
required to be paid by the Mortgagor, to be paid as a Servicing Advance and the
Special Servicer shall not consent to such extension without the consent of the
Directing Certificateholder) that such extension would not constitute a
"significant modification" of the Mortgage Loan and/or Companion Loan within the
meaning of Treasury Regulations Section 1.860G-2(b). Notwithstanding the
foregoing, the applicable Master Servicer, without the consent of the Special
Servicer, may modify or amend the terms of any Mortgage Loan and/or Companion
Loan in order to (i) cure any ambiguity or mistake therein or (ii) correct or
supplement any provisions therein which may be inconsistent with any other
provisions therein or correct any error, provided, that, if the Mortgage Loan
and/or Companion Loan is not in default or default with respect thereto is not
reasonably foreseeable, such modification or amendment would not be a
"significant modification" of the Mortgage Loan and/or Companion Loan within the
meaning of Treasury Regulations Section 1.860G-2(b).
Subject to applicable law and the Mortgage Loan documents, neither
the applicable Master Servicer nor the Special Servicer shall permit the
substitution of any Mortgaged Property (or any portion thereof) for one or more
other parcels of real property at any time the Mortgage Loan is not in default
pursuant to the terms of the related Mortgage Loan documents or default with
respect thereto is not reasonably foreseeable unless (i) such Master Servicer or
the Special Servicer, as applicable, obtains from each Rating Agency (and
delivers to the Directing Certificateholder) a written confirmation that such
substitution will not cause a downgrade, qualification or withdrawal of the then
current rating assigned to any of the Certificates and (ii) either (a) such
substitution is at the unilateral option of the Mortgagor or otherwise occurs
automatically pursuant to the terms of the Mortgage Loan in effect on the
Startup Day, within the meaning of Treasury Regulations Section 1.1001-3, or (b)
it has received an Opinion of Counsel to the effect that such substitution would
not be a "significant modification" of the Mortgage Loan within the meaning of
Treasury Regulations Section 1.860G-2(b).
(b) If the Special Servicer determines that a modification, waiver
or amendment (including, without limitation, the forgiveness or deferral of
interest or principal or the substitution of collateral pursuant to the terms of
the Mortgage Loan or otherwise, the release of collateral or the pledge of
additional collateral) of the terms of a Specially Serviced Mortgage Loan with
respect to which a payment default or other material default has occurred or a
payment default or other material default is, in the Special Servicer's
judgment, reasonably foreseeable (as evidenced by an Officer's Certificate of
the Special Servicer), is reasonably likely to produce a greater recovery on a
net present value basis (the relevant discounting to be performed at the related
Mortgage Rate) to the Trust and, if applicable, the Companion Holders as the
holders of such Companion Loans than liquidation of such Specially Serviced
Mortgage Loan, then the Special Servicer may agree to a modification, waiver or
amendment of such Specially Serviced Mortgage Loan, subject to (x) the
provisions of this Section 3.20(b) and Section 3.20(c), (y) the approval of the
Directing Certificateholder as provided in Section 3.21 and (z) with respect to
an AB Mortgage Loan or the Houston Galleria Whole Loan, the rights of the
related Companion Holder or the Houston Galleria Controlling Holder, as
applicable, to advise the Special Servicer with respect to, or consent to, such
modification, waiver or amendment pursuant to the terms of the related
Intercreditor Agreement. Notwithstanding anything to the contrary in this
Section, to the extent consistent with the Servicing Standards and the Houston
Galleria Intercreditor Agreement (taking into account the extent to which the
Houston Galleria Pari Passu Companion Loan is pari passu with the Houston
Galleria Loan, that the Houston Galleria Non-Trust Subordinate Loan is
subordinate to the Houston Galleria Loan and the Houston Galleria Pari Passu
Companion Loan and the Houston Galleria Trust Subordinate Companion Loan is
subordinate to the Houston Galleria Loan, the Houston Galleria Pari Passu
Companion Loan and the Houston Galleria Non-Trust Subordinate Companion Loan):
(i) no waiver, reduction or deferral of any particular amounts due on the
Houston Galleria Loan, as applicable, shall be effected prior to the waiver,
reduction or deferral of the entire corresponding item in respect of, first, the
Houston Galleria Trust Subordinate Loan, to the maximum extent possible, and
then the Houston Galleria Non-Trust Subordinate Companion Loan, to the maximum
extent possible; and (ii) no reduction of the Mortgage Rate on the Houston
Galleria Loan shall be effected prior to the reduction of the Mortgage Rate of
the Houston Galleria Trust Subordinate Companion Loan, to the maximum extent
possible, and then to the Houston Galleria Non-Trust Subordinate Companion Loan.
The Special Servicer shall use its reasonable efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to fully amortize prior
to the Rated Final Distribution Date and shall not agree to a modification,
waiver or amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would extend the maturity date of any such
Specially Serviced Mortgage Loan to a date occurring later than the earlier of
(a) two years prior to the Rated Final Distribution Date and (b) if such
Specially Serviced Mortgage Loan is secured by a leasehold estate and not also
the related fee interest, the date occurring twenty years or, to the extent
consistent with the Servicing Standards giving due consideration to the
remaining term of the ground lease, with the consent of the Directing
Certificateholder, ten years prior to the expiration of such leasehold estate.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, except when a Mortgage Loan and/or Companion Loan is in default
or default with respect thereto is reasonably foreseeable, no fee described in
this paragraph shall be collected by any Master Servicer or Special Servicer
from a Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent
or any modification, waiver or amendment of a Mortgage Loan or Companion Loan,
as applicable (unless the amount thereof is specified in the related Mortgage
Note) if the collection of such fee would cause such consent, modification,
waiver or amendment to be a "significant modification" of the Mortgage Note
within the meaning of Treasury Regulations Section 1.860G-2(b).
(d) To the extent consistent with this Agreement, the applicable
Master Servicer or the Special Servicer may agree to any waiver, modification or
amendment of a Mortgage Loan or Companion Loan that is not in default or as to
which default is not reasonably foreseeable only if it provides the Trustee with
an Opinion of Counsel (at the expense of the related Mortgagor or such other
Person requesting such modification or, if such expense cannot be collected from
the related Mortgagor or such other Person, to be paid by the applicable Master
Servicer as a Servicing Advance; provided that the applicable Master Servicer or
Special Servicer, as the case may be, shall use its reasonable efforts to
collect such fee from the Mortgagor or such other Person to the extent permitted
under the related Mortgage Loan documents) to the effect that the contemplated
waiver, modification or amendment (i) will not be a "significant modification"
of the Mortgage Loan within the meaning of Treasury Regulations Section
1.860G-2(b) and (ii) will not cause (x) either the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC for purposes of the Code or (y)
either the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to any tax
under the REMIC Provisions. Notwithstanding the foregoing, neither the
applicable Master Servicer nor the Special Servicer may waive the payment of any
Yield Maintenance Charge or the requirement that any prepayment of a Mortgage
Loan be made on a Due Date, or if not made on a Due Date, be accompanied by all
interest that would be due on the next Due Date with respect to any Mortgage
Loan or Companion Loan that is not a Specially Serviced Mortgage Loan.
(e) In the event of a modification which creates Mortgage Deferred
Interest, such Mortgage Deferred Interest will be allocated to reduce the
Distributable Certificate Interest of the Class or Classes of Certificates
pursuant to Section 4.06.
(f) Subject to Section 3.20(c), the applicable Master Servicer and
the Special Servicer each may, as a condition to its granting any request by a
Mortgagor for consent, modification (including extensions), waiver or indulgence
or any other matter or thing, the granting of which is within such Master
Servicer's or the Special Servicer's, as the case may be, discretion pursuant to
the terms of the instruments evidencing or securing the related Mortgage Loan or
Companion Loan and is permitted by the terms of this Agreement, require that
such Mortgagor pay to such Master Servicer or the Special Servicer, as the case
may be, as additional servicing compensation, a reasonable or customary fee, for
the additional services performed in connection with such request.
(g) All modifications (including extensions), waivers and amendments
of the Mortgage Loans and/or Companion Loans entered into pursuant to this
Section 3.20 shall be in writing, signed by the applicable Master Servicer or
the Special Servicer, as the case may be, and the related Mortgagor (and by any
guarantor of the related Mortgage Loan, if such guarantor's signature is
required by the Special Servicer in accordance with the Servicing Standards).
(h) Each of the Master Servicers with respect to the Mortgage Loans
it is servicing hereunder and the Special Servicer shall notify the Rating
Agencies, the Trustee, the Directing Certificateholder and each applicable
Companion Holder (or in the case of the Houston Galleria Loan, each holder of
the Houston Galleria Companion Loans), the Mortgage Loan Sellers (if such
Mortgage Loan Seller is not a Servicer or Sub-Servicer of such Mortgage Loan or
the Directing Certificateholder) and each other in writing of any modification,
waiver or amendment of any term of any Mortgage Loan or Companion Loan and the
date thereof, and shall deliver to the Trustee or the related Custodian with a
copy to the applicable Master Servicer (if such notice is being delivered by the
Special Servicer) for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or amendment,
promptly (and in any event within 10 Business Days) following the execution
thereof. Following receipt of the applicable Master Servicer's or the Special
Servicer's, as applicable, delivery of the aforesaid modification, waiver or
amendment to the Trustee, the Trustee shall forward a copy thereof to each
Holder of a Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
O, Class P, Class Q and Class NR Certificate upon request and, if such
modification, waiver or amendment is with respect to the Houston Galleria Whole
Loan, to each Holder of the Class HG Certificates.
(i) Notwithstanding the foregoing, neither the Master Servicers nor
the Special Servicer shall permit the substitution of any Mortgaged Property
pursuant to the defeasance provisions of any Mortgage Loan unless such
defeasance complies with Treasury Regulations Section 1.860G-2(a)(8) and the
applicable Master Servicer or the Special Servicer, as applicable, has received
(i) a certificate of an Independent certified public accountant to the effect
that such substituted property will provide cash flows sufficient to meet all
payments of interest and principal (including payments at maturity) on such
Mortgage Loan in compliance with the requirements of the terms of the related
Mortgage Loan documents and, if applicable, Companion Loan documents, (ii) one
or more Opinions of Counsel (at the expense of the related Mortgagor) to the
effect that the Trustee, on behalf of the Trust Fund, will have a first priority
perfected security interest in such substituted Mortgaged Property; provided,
however, that, to the extent consistent with the related Mortgage Loan documents
and, if applicable, Companion Loan documents, the related Mortgagor shall pay
the cost of any such opinion as a condition to granting such defeasance, (iii)
to the extent consistent with the related Mortgage Loan documents, the Mortgagor
shall establish a single purpose entity to act as a successor Mortgagor, if so
required by the Rating Agencies, (iv) to the extent permissible under the
related Mortgage Loan documents and, if applicable, Companion Loan documents,
such Master Servicer or Special Servicer, as applicable shall use its reasonable
efforts to require the related Mortgagor to pay all costs of such defeasance,
including but not limited to the cost of maintaining any successor Mortgagor and
(v) to the extent permissible under the Mortgage Loan documents and, if
applicable, Companion Loan documents, such Master Servicer or Special Servicer,
as applicable shall obtain, at the expense of the related Mortgagor, written
confirmation from the Rating Agencies that such defeasance will not cause the
downgrade, withdrawal or modification of the then current ratings of the
Certificates; provided, however, that (a) the applicable Master Servicer or
Special Servicer, as applicable shall not be required to obtain such written
confirmation from S&P unless such Mortgage Loan (or Mortgage Loans if the single
purpose entity established pursuant to clause (iii) above holds assets for more
than one Mortgagor) at the time of such defeasance is (A) one of the ten largest
Mortgage Loans by Stated Principal Balance, (B) a Mortgage Loan with a Cut-off
Date Principal Balance greater than $20,000,000 or (C) a Mortgage Loan that
represents 5% or more of the Cut-off Date Principal Balance of all Mortgage
Loans and (b) the applicable Master Servicer or Special Servicer, as applicable
shall not be required to obtain the Xxxxx'x confirmation referenced in clause
(v) above with respect to any Mortgage Loan which has a Stated Principal Balance
less than $20,000,000 and represents less than 5% of the Stated Principal
Balance of all the Mortgage Loans, so long as such Mortgage Loan is not one of
the ten largest Mortgage Loans by Stated Principal Balance.
(j) Notwithstanding anything herein or in the related Mortgage Loan
documents and, if applicable, Companion Loan documents to the contrary, the
applicable Master Servicer or the Special Servicer may permit the substitution
of "government securities," within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, that comply with Treasury Regulations Section
1.860G-2(a)(8) for any Mortgaged Property pursuant to the defeasance provisions
of any Mortgage Loan (or any portion thereof) in lieu of the defeasance
collateral specified in the related Mortgage Loan or Companion Loan documents;
provided, that the applicable Master Servicer or the Special Servicer reasonably
determines that allowing their use would not cause a default or event of default
to become reasonably foreseeable and the applicable Master Servicer or the
Special Servicer receives, to the extent permitted under the related Mortgage
Loan documents, an Opinion of Counsel (at the expense of the Mortgagor to the
extent permitted under the Mortgage Loan documents and, if applicable, Companion
Loan documents and if not so permitted, paid as a Servicing Advance) to the
effect that such use would not be and would not constitute a "significant
modification" of such Mortgage Loan or Companion Loan pursuant to Treasury
Regulations Section 1.860G-2(b) and would not otherwise constitute an Adverse
REMIC Event with respect to any REMIC; provided further, that the requirements
set forth in Section 3.20(i) (including the ratings confirmations) are
satisfied; provided further, that such securities are backed by the full faith
and credit of the United States government, or the applicable Master Servicer or
the Special Servicer shall obtain a written confirmation of each Rating Agency
that the use of such securities will not result in the downgrade, withdrawal or
qualification of the then current ratings of any Class of Certificates
outstanding.
(k) If required under the related Mortgage Loan or Companion Loan
documents or if otherwise consistent with the Servicing Standards, each Master
Servicer shall establish and maintain one or more accounts (the "Defeasance
Accounts"), which shall be Eligible Accounts, into which all payments received
by such Master Servicer from any defeasance collateral substituted for any
Mortgaged Property shall be deposited and retained, and shall administer such
Defeasance Accounts in accordance with the Mortgage Loan or Companion Loan
documents. Notwithstanding the foregoing, in no event shall such Master Servicer
permit such amounts to be maintained in the Defeasance Account for a period in
excess of 90 days, unless such amounts are reinvested by such Master Servicer in
"government securities," within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, that comply with Treasury Regulations Section
1.860G-2(a)(8). To the extent not required or permitted to be placed in a
separate account, such Master Servicer shall deposit all payments received by it
from defeasance collateral substituted for any Mortgaged Property into the
Certificate Account and treat any such payments as payments made on the Mortgage
Loan or Companion Loan in advance of its Due Date in accordance with clause
(a)(i) of the definition of Available Distribution Amount, and not as a
prepayment of the related Mortgage Loan or Companion Loan. Notwithstanding
anything herein to the contrary, in no event shall such Master Servicer permit
such amounts to be maintained in the Certificate Account for a period in excess
of 365 days (or 366 days in the case of a leap year).
(l) Notwithstanding anything to the contrary in this Agreement,
neither the applicable Master Servicer nor the Special Servicer, as applicable,
shall, 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 otherwise paid out of general collections) from the
Rating Agencies that such action will not result in a qualification, downgrade
or withdrawal of any of the ratings assigned by such Rating Agency to the
Certificates, grant or accept 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 Mortgage Loan with an unpaid principal balance that is at least equal
to five percent (5%) of the then aggregate principal balance of all Mortgage
Loans or $20,000,000.
Section 3.21 Transfer of Servicing between Master Servicer and
Special Servicer; Recordkeeping; Asset Status Report. (a) Upon determining that
a Servicing Transfer Event has occurred with respect to any Mortgage Loan or
Companion Loan, the applicable Master Servicer or the Special Servicer, as the
case may be, shall promptly give notice to the applicable Master Servicer or the
Special Servicer, as the case may be, and the Directing Certificateholder
thereof, and the applicable Master Servicer shall deliver the related Mortgage
File and Servicing File to the Special Servicer and shall use its reasonable
efforts to provide the Special Servicer with all information, documents and
records (including records stored electronically on computer tapes, magnetic
discs and the like) relating to the Mortgage Loan and, if applicable, the
related Companion Loan, either in the applicable Master Servicer's possession or
otherwise available to such 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. Each Master Servicer shall use its
reasonable efforts to comply with the preceding sentence within 5 Business Days
of the occurrence of each related Servicing Transfer Event and in any event
shall continue to act as Master Servicer and administrator of such Mortgage Loan
and, if applicable, the related Companion Loan(s) until the Special Servicer has
commenced the servicing of such Mortgage Loan and, if applicable, the related
Companion Loan. Each Master Servicer shall deliver to the Trustee and the
Directing Certificateholder a copy of the notice of such Servicing Transfer
Event provided by such Master Servicer to the Special Servicer, or by the
Special Servicer to such Master Servicer, pursuant to this Section. The Trustee
shall deliver to each Controlling Class Certificateholder a copy of the notice
of such Servicing Transfer Event provided by the applicable Master Servicer
pursuant to this Section.
Upon determining that a Specially Serviced Mortgage Loan or
Companion Loan (other than an REO Loan) has become current and has remained
current for three consecutive Monthly Payments (provided that (i) no additional
Servicing Transfer Event is foreseeable in the reasonable judgment of the
Special Servicer, and (ii) for such purposes taking into account any
modification or amendment of such Mortgage Loan and, if applicable, the related
Companion Loan(s)), and that no other Servicing Transfer Event is continuing
with respect thereto, the Special Servicer shall immediately give notice thereof
to the applicable Master Servicer and the Directing Certificateholder, and shall
return the related Mortgage File and Servicing File to the applicable Master
Servicer (or copies thereof if copies only were delivered to the Special
Servicer) and upon giving such notice, and returning such Mortgage File and
Servicing File to the applicable Master Servicer, the Special Servicer's
obligation to service such Corrected Mortgage Loan shall terminate and the
obligations of the Master Servicer to service and administer such Mortgage Loan
and, if applicable, the Companion Loan, shall recommence.
(b) In servicing any Specially Serviced Mortgage Loans and Companion
Loans, the Special Servicer will provide to the Trustee originals of documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File (with a copy of each such original to the applicable Master
Servicer), and provide the applicable Master Servicer with copies of any
additional related Mortgage Loan or Companion Loan information including
correspondence with the related Mortgagor.
(c) Notwithstanding the provisions of Section 3.12(d), each Master
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Mortgage Loans and Companion Loans and REO Properties and
shall provide the Special Servicer with any information in its possession with
respect to such records to enable the Special Servicer to perform its duties
under this Agreement, provided, that this statement shall not be construed to
require any Master Servicer to produce any additional reports.
(d) No later than 45 days after a Servicing Transfer Event for a
Mortgage Loan and, if applicable, the Companion Loan, the Special Servicer shall
deliver to the applicable Master Servicer, each Rating Agency, the Trustee (upon
request), each related Companion Holder and the Directing Certificateholder, a
report (the "Asset Status Report") with respect to such Mortgage Loan or
Companion Loan and the related Mortgaged Property; provided, however, the
Special Servicer shall not be required to deliver an Asset Status Report to the
Directing Certificateholder if they are the same entity. Such Asset Status
Report shall set forth the following information to the extent reasonably
determinable based on the information that was delivered to the Special Servicer
in connection with the transfer of servicing pursuant to the Servicing Transfer
Event:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standards, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral for
the related Mortgage Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the applicable Master Servicer for regular servicing or otherwise
realized upon;
(v) a copy of the last obtained Appraisal of the Mortgaged Property;
and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standards.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder does not disapprove such Asset Status Report in
writing, the Special Servicer shall implement the recommended action as outlined
in such Asset Status Report and shall promptly furnish the applicable Mortgage
Loan Seller with a copy thereof; provided, however, that the Special Servicer
may not take any action that is contrary to applicable law, the Servicing
Standards or the terms of the applicable Mortgage Loan documents. If the
Directing Certificateholder disapproves such Asset Status Report within 10
Business Days of receipt, the Special Servicer will revise such Asset Status
Report and deliver to the Directing Certificateholder, the Rating Agencies, the
applicable Mortgage Loan Seller, the Trustee and the applicable 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(d) until the Directing
Certificateholder shall fail to disapprove such revised Asset Status Report in
writing within ten (10) Business Days of receiving such revised Asset Status
Report or until the Special Servicer makes one of the determinations described
below. Notwithstanding the foregoing, in the event the Directing
Certificateholder and the Special Servicer have been unable to agree upon an
Asset Status Report with respect to a Specially Serviced Mortgage Loan within 90
days of the Directing Certificateholder's receipt of the initial Asset Status
Report, the Special Servicer, subject to the rights of the related Companion
Holder pursuant to the related Intercreditor Agreement, if applicable, shall
implement the actions directed by the Directing Certificateholder unless such
actions would violate the Servicing Standard, in which case the Special Servicer
shall implement actions described in the most recent Asset Status Report
submitted to the Directing Certificateholder by the Special Servicer, and the
Special Servicer shall promptly furnish the applicable Mortgage Loan Seller with
a copy of any Asset Status Report which the Special Servicer intends to, or
commences to, implement pursuant to this Section 3.21(d). The Special Servicer
may, from time to time, modify any Asset Status Report it has previously
delivered and implement such report, provided such report shall have been
prepared, reviewed and not rejected pursuant to the terms of this Section.
Notwithstanding the foregoing, the Special Servicer (i) may, following the
occurrence of an extraordinary event with respect to the related Mortgaged
Property, take any action set forth in such Asset Status Report before the
expiration of a ten (10) Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders or, if a Loan Pair is
involved, the Companion Holder, and it has made a reasonable effort to contact
the Directing Certificateholder and (ii) in any case, shall determine whether
such affirmative disapproval is not in the best interest of all the
Certificateholders pursuant to the Servicing Standards. Each final Asset Status
Report shall be delivered to the applicable Master Servicer, the applicable
Mortgage Loan Seller, the Trustee (upon request) and each Rating Agency.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
No direction or disapproval of the Directing Certificateholder, or
failure of the Directing Certificateholder to consent to or approve (including
any deemed consents or approvals) any request of the Special Servicer, shall (a)
require or cause the Special Servicer to violate the terms of a Specially
Serviced Mortgage Loan, applicable law or any provision of this Agreement,
including the Special Servicer's obligation to act in accordance with the
Servicing Standards and to maintain the REMIC status of each of the Lower-Tier
REMIC and the Upper-Tier REMIC or (b) result in the imposition of a "prohibited
transaction" or "prohibited contribution" tax under the REMIC Provisions, or (c)
expose the Master Servicer, the Special Servicer, the Depositor, the Mortgage
Loan Sellers, the Trust Fund, the Trustee or their respective officers,
directors, employees or agents to any claim, suit or liability or (d) materially
expand the scope of the Special Servicer's, Trustee's or the Master Servicer's
responsibilities under this Agreement.
(e) Upon receiving notice of (i) the occurrence of the events
described in clause (v) of the definition of Servicing Transfer Event (without
regard to the 60 day period set forth therein), or (ii) the request by a
Mortgagor for the amendment or modification of a Mortgage Loan or Companion Loan
which is not a Specially Serviced Mortgage Loan for which the Special Servicer
is responsible for such amendment or modification pursuant to Section 3.08 and
Section 3.20, the applicable Master Servicer shall with reasonable promptness
give notice thereof, and shall use its reasonable efforts to provide the Special
Servicer with all information relating to the Mortgage Loan or Companion Loan
and reasonably requested by the Special Servicer to enable it to negotiate with
the related Mortgagor and prepare for any such proceedings. Each Master Servicer
shall use its reasonable efforts to comply with the preceding sentence within 5
Business Days of the occurrence of each such event.
Section 3.22 Sub-Servicing Agreements. (a) Each Master Servicer may
enter into Sub-Servicing Agreements to provide for the performance by third
parties of any or all of its respective obligations under Articles II, III, IV
and X hereof; provided, that the Sub-Servicing Agreement as amended or modified:
(i) is consistent with this Agreement in all material respects and requires the
Sub-Servicer to comply with all of the applicable conditions of this Agreement;
(ii) provides that if such Master Servicer shall for any reason no longer act in
such capacity hereunder (including, without limitation, by reason of an Event of
Default), the Trustee or its designee shall thereupon assume all of the rights
and, except to the extent they arose prior to the date of assumption,
obligations of such Master Servicer under such agreement, or, alternatively, may
act in accordance with Section 7.02 hereof under the circumstances described
therein (subject to Section 3.22(g) hereof); (iii) provides that the Trustee for
the benefit of the Certificateholders, the related Companion Holder (if
applicable) and the Trustee (as holder of the Class A-2FL Regular Interest and
the Uncertificated Lower-Tier Interests) shall be a third party beneficiary
under such Sub-Servicing Agreement, but that (except to the extent the Trustee
or its designee assumes the obligations of the applicable Master Servicer
thereunder as contemplated by the immediately preceding clause (ii)) none of the
Trust Fund, the Trustee, the Special Servicer, any successor Master Servicer or
any Certificateholder (or the related Companion Holder, if applicable) shall
have any duties under such Sub-Servicing Agreement or any liabilities arising
therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to this
Agreement to terminate such Sub-Servicing Agreement with respect to such
purchased Mortgage Loan at its option and without penalty; provided, however,
that the Initial Sub-Servicing Agreements may only be terminated by the Trustee
or its designees as contemplated by Section 3.22(g) hereof and in such
additional manner and by such other Persons, as provided in, such Sub-Servicing
Agreement; (v) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund and (vi)
does not permit the Sub-Servicer to modify any Mortgage Loan unless and to the
extent the applicable Master Servicer is permitted hereunder to modify such
Mortgage Loan. Any successor Master Servicer hereunder shall, upon becoming
successor Master Servicer, be assigned and shall assume any Sub-Servicing
Agreements from the predecessor master servicer (subject to Section 3.22(g)
hereof). In addition, each Sub-Servicing Agreement entered into by any Master
Servicer may but need not provide that the obligations of the Sub-Servicer
thereunder shall terminate with respect to any Mortgage Loan serviced thereunder
at the time such Mortgage Loan becomes a Specially Serviced Mortgage Loan;
provided, however, that the Sub-Servicing Agreement may provide (if the
Sub-Servicing Agreement provides for Advances by the Sub-Servicer, although it
need not so provide) that the Sub-Servicer will continue to make all Advances
and calculations and prepare all reports required under the Sub-Servicing
Agreement with respect to Specially Serviced Mortgage Loans and continue to
collect its Primary Servicing Fees as if no Servicing Transfer Event had
occurred and with respect to REO Properties (and the related REO Loans) as if no
REO Acquisition had occurred and to render such incidental services with respect
to such Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for in such Sub-Servicing Agreement. Each Master Servicer shall deliver
to the Trustee copies of all Sub-Servicing Agreements, and any amendments
thereto and modifications thereof, entered into by it promptly upon its
execution and delivery of such documents. References in this Agreement to
actions taken or to be taken by any Master Servicer include actions taken or to
be taken by a Sub-Servicer on behalf of such Master Servicer; and, in connection
therewith, all amounts advanced by any Sub-Servicer (if the Sub-Servicing
Agreement provides for Advances by the Sub-Servicer, although it need not so
provide) to satisfy the obligations of such Master Servicer hereunder to make
Advances shall be deemed to have been advanced by such Master Servicer out of
its own funds and, accordingly, in such event, such Advances shall be
recoverable by such Sub-Servicer in the same manner and out of the same funds as
if such Sub-Servicer were the applicable Master Servicer, and, for so long as
they are outstanding, such Advances shall accrue interest in accordance with
Section 3.03(d), such interest to be allocable between the applicable Master
Servicer and such Sub-Servicer as may be provided (if at all) pursuant to the
terms of the Sub-Servicing Agreement. For purposes of this Agreement, each
Master Servicer shall be deemed to have received any payment when a Sub-Servicer
retained by it receives such payment. Each Master Servicer shall notify the
Special Servicer, the Trustee and the Depositor in writing promptly of the
appointment by it of any Sub-Servicer, except that such Master Servicer need not
provide such notice as to the Initial Sub-Servicing Agreements.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to the extent
necessary to ensure the enforceability of the related Mortgage Loans or the
compliance with its obligations under the Sub-Servicing Agreement and the
applicable Master Servicer's obligations under this Agreement.
(c) As part of its servicing activities hereunder, each Master
Servicer for the benefit of the Trustee and the Certificateholders, shall (at no
expense to the Trustee, the Certificateholders or the Trust Fund) monitor the
performance and enforce the obligations of each of its Sub-Servicers under the
related Sub-Servicing Agreement. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Sub-Servicing
Agreements in accordance with their respective terms and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as is in accordance with the Servicing Standards. Each Master
Servicer shall have the right to remove a Sub-Servicer retained by it in
accordance with the terms of the related Sub-Servicing Agreement.
(d) In the event the Trustee or its designee becomes successor
Master Servicer and assumes the rights and obligations of any Master Servicer
under any Sub-Servicing Agreement, such Master Servicer, at its expense, shall
deliver to the assuming party all documents and records relating to such
Sub-Servicing Agreement and the Mortgage Loans and, if applicable, Companion
Loans then being serviced thereunder and an accounting of amounts collected and
held on behalf of it thereunder, and otherwise use reasonable efforts to effect
the orderly and efficient transfer of the Sub-Servicing Agreement to the
assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement
and this Section 3.22, each Master Servicer shall remain obligated and
responsible to the Trustee, the Special Servicer, holders of the Companion Loans
serviced hereunder and the Certificateholders for the performance of its
obligations and duties under this Agreement in accordance with the provisions
hereof to the same extent and under the same terms and conditions as if it alone
were servicing and administering the Mortgage Loans for which it is responsible,
and such Master Servicer shall pay the fees of any Sub-Servicer thereunder as
and when due from its own funds. In no event shall the Trust Fund bear any
termination fee required to be paid to any Sub-Servicer as a result of such
Sub-Servicer's termination under any Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence, and shall be indemnified by the Sub-Servicer, with
respect to, or misuse of, any such power of attorney by a Sub-Servicer, and
provided further that the use of such power of attorney by a Sub-Servicer is
subject to the last sentence of Section 3.01(b).
(g) Each Sub-Servicing Agreement shall provide that, in the event
the Trustee or any other Person becomes successor Master Servicer, the Trustee
or such successor Master Servicer shall have the right to terminate such
Sub-Servicing Agreement with or without cause and without a fee. Notwithstanding
the foregoing or any other contrary provision in this Agreement, the Trustee and
any successor Master Servicer shall assume each Initial Sub-Servicing Agreement
and (i) the Initial Sub-Servicer's rights and obligations under the Initial
Sub-Servicing Agreement shall expressly survive a termination of the Master
Servicer's servicing rights under this Agreement; provided, that the Initial
Sub-Servicing Agreement has not been terminated in accordance with its
provisions; (ii) any successor Master Servicer, including, without limitation,
the Trustee (if it assumes the servicing obligations of the Master Servicer)
shall be deemed to automatically assume and agree to the then-current Initial
Sub-Servicing Agreement without further action upon becoming the successor
Master Servicer and (iii) this Agreement may not be modified in any manner which
would increase the obligations or limit the rights of the Initial Sub-Servicer
hereunder and/or under the Initial Sub-Servicing Agreement, without the prior
written consent of the Initial Sub-Servicer (which consent shall not be
unreasonably withheld).
(h) With respect to Mortgage Loans subject to a Sub-Servicing
Agreement, the Special Servicer shall, to the extent required, remit amounts,
deliver reports and information, and afford access to facilities and information
to the related Sub-Servicer that would be required to be remitted, delivered or
afforded, as the case may be, to the applicable Master Servicer pursuant to the
terms hereof (and within the same period of time required herein), within a
sufficient period of time to allow the Sub-Servicer to fulfill its obligations
under such Sub-Servicing Agreement and in no event later than 1 Business Day
prior to the applicable Determination Date (or such other date as specified
herein).
(i) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not enter into any Sub-Servicing Agreement which provides
for the performance by third parties of any or all of its obligations herein,
unless (i) the Special Servicer receives the consent of the Directing
Certificateholder and (ii) the Special Servicer receives the written
confirmation of Fitch and S&P that such agreement will not cause the downgrade,
withdrawal or qualification of any of the current ratings assigned to any Class
of Certificates.
Section 3.23 Representations, Warranties and Covenants of the Master
Servicers. (a) Each Master Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders and to
the other Master Servicer, the Depositor and the Special Servicer, as of the
Closing Date, that:
(i) Such Master Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware (in
the case of Master Servicer No. 1), or a corporation duly organized,
validly existing and in good standing under the laws of the State of
California (in the case of Master Servicer No. 2), and such Master
Servicer is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by such Master
Servicer, and the performance and compliance with the terms of this
Agreement by such Master Servicer, does not (A) violate the applicable
Master Servicer's organizational documents, (B) constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other material instrument to which it is a party or which is applicable to
it or any of its assets or (C) violate any law, rule, regulation, order,
judgment or decree to which such Master Servicer or its property is
subject, which, in the case of either (B) or (C), is likely to materially
and adversely affect either the ability of the Master Servicer to perform
its obligations under this Agreement or its financial condition;
(iii) Such Master Servicer has the full power and authority to enter
into and consummate all transactions to be performed by it contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the applicable Master Servicer, enforceable against
such Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law;
(v) Such Master Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, local or governmental agency, which default, in such
Master Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of such Master
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of such Master
Servicer's knowledge, threatened against such Master Servicer which would
prohibit such Master Servicer from entering into this Agreement or, in
such Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of such Master Servicer
to perform its obligations under this Agreement or the financial condition
of such Master Servicer;
(vii) Such Master Servicer has errors and omissions insurance
coverage which is in full force and effect and complies with the
requirements of Section 3.07 hereof; and
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by such Master Servicer, or compliance by such Master Servicer
with, this Agreement or the consummation of the transactions of such
Master Servicer contemplated by this Agreement, except for any consent,
approval, authorization or order which has been obtained or can be
obtained prior to the actual performance by such Master Servicer of its
obligations under this Agreement, or which, if not obtained would not have
a materially adverse effect on the ability of such Master Servicer to
perform its obligations hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.24 Representations, Warranties and Covenants of the
Special Servicer. (a) The Special Servicer hereby represents, warrants and
covenants to the Trustee, for its own benefit and the benefit of the
Certificateholders, the Depositor and the Master Servicers, 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 Delaware, and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, does not (A) violate the Special
Servicer's organizational documents, (B) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
material instrument to which it is a party or which is applicable to it or
any of its assets, or (C) violate any law, rule, regulation, order,
judgment or decree to which the Special Servicer or its property is
subject, which, in the case of either (B) or (C), is likely to materially
and adversely affect either the ability of the Special Servicer to perform
its obligations under this Agreement or its financial condition;
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions to be performed by it contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the 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 (A) to
applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law;
(v) The Special Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, local or governmental agency, which default, in the
Special Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of the Special
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment is likely to
materially and adversely affect the ability of the Special Servicer to
perform its obligations under this Agreement;
(vii) The Special Servicer has errors and omissions coverage which
is in full force and effect and complies with the requirements of Section
3.07 hereof; and
(viii) No consent, approval, authorization or order of any court or
governmental agency or body under federal or state law is required for the
execution, delivery and performance by the Special Servicer, or compliance
by the Special Servicer with, this Agreement or the consummation of the
transactions of the Special Servicer contemplated by this Agreement,
except for any consent, approval, authorization or order which has been
obtained or can be obtained prior to the actual performance by the Special
Servicer of its obligations under this Agreement, and which, if not
obtained would not have a materially adverse effect on the ability of the
Special Servicer to perform its obligations hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.25 Interest Reserve Account. (a) On each P&I Advance Date
relating to any Interest Accrual Period ending in any January and on any P&I
Advance Date which occurs in a year which is not a leap year relating to any
Interest Accrual Period ending in any December, the Trustee, in respect of the
Actual/360 Mortgage Loans, shall deposit into the Interest Reserve Account, an
amount equal to one day's interest on the Stated Principal Balance of the
Interest Reserve Loans as of the Due Date occurring in the month preceding the
month in which such P&I Advance Date occurs at the related Net Mortgage Rate, to
the extent a full Monthly Payment or P&I Advance is made in respect thereof (all
amounts so deposited in any consecutive February and January, "Withheld
Amounts").
(b) On each P&I Advance Date occurring in March, the Trustee shall
withdraw, from the Interest Reserve Account an amount equal to the Withheld
Amounts from the preceding January (if applicable) and February, if any, and
deposit such amount into the Lower-Tier Distribution Account.
Section 3.26 Excess Interest Distribution Account. Prior to the
applicable Distribution Date, each Master Servicer is required to remit to the
Trustee for deposit into the Excess Interest Distribution Account an amount
equal to the Excess Interest received during the related Due Period.
Section 3.27 Directing Certificateholder Contact with Master
Servicers. No less often than on a monthly basis, each of the Master Servicers
and the Special Servicer shall, without charge, make a knowledgeable Servicing
Officer via telephone available to verbally answer questions from the Directing
Certificateholder (and the holders of the Houston Galleria Companion Loans, the
Jordan Creek Companion Holder and the Brookdale Office Portfolio Companion
Holder) regarding the performance and servicing of the Mortgage Loans and/or REO
Properties for which such Master Servicer or the Special Servicer, as the case
may be, is responsible.
Section 3.28 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing Certificateholder. (a)
Each Controlling Class Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to provide its name and address to the
Trustee and to notify the Master Servicers, the Trustee and Special Servicer of
the transfer of any Certificate of a Controlling Class, the selection of a
Directing Certificateholder or the resignation or removal thereof. The Directing
Certificateholder is hereby deemed to have agreed by virtue of its purchase of a
Certificate to notify the Master Servicers, Special Servicer and Trustee when
such Certificateholder is appointed Directing Certificateholder and when it is
removed or resigns. To the extent there is only one Controlling Class
Certificateholder and it is also the Special Servicer, it shall be the Directing
Certificateholder.
(b) A "Controlling Class" as of any time of determination shall be
as defined in Article I hereof.
(c) Once a Directing Certificateholder has been selected, each of
the Master Servicers, the Special Servicer, the Depositor, the Trustee and each
other Certificateholder (or Certificate Owner, if applicable) shall be entitled
to rely on such selection unless a majority of the Controlling Class
Certificateholders, by Certificate Balance, or such Directing Certificateholder
shall have notified the Master Servicers, Special Servicer, the Trustee and each
other Controlling Class Certificateholder, in writing, of the resignation of
such Directing Certificateholder or the selection of a new Directing
Certificateholder. Upon the resignation of a Directing Certificateholder, the
Trustee shall request the Controlling Class Certificateholders to select a new
Directing Certificateholder.
(d) Until it receives notice to the contrary, each of the Master
Servicers shall be entitled to rely on the most recent notification with respect
to the identity of the Controlling Class Certificateholder, and the Directing
Certificateholder.
(e) Upon request, the Trustee shall deliver to the Special Servicer
and the Master Servicers a list of each Controlling Class Certificateholder and
the Directing Certificateholder, including names and addresses. In addition to
the foregoing, within two (2) Business Days of receiving notice of the selection
of a new Directing Certificateholder or the existence of a new Controlling Class
Certificateholder, the Trustee shall notify the Master Servicers and the Special
Servicer. Notwithstanding the foregoing, American Capital Strategies, Ltd. shall
be the initial Directing Certificateholder (provided, with respect to the
Brookdale Office Portfolio AB Mortgage Loan, the Jordan Creek AB Mortgage Loan
and the Houston Galleria Loan, the related Whole Loan Controlling Holder shall
be the Directing Certificateholder to the extent set forth in the definition of
Directing Certificateholder) and shall remain so until a successor is appointed
pursuant to the terms of this Agreement.
Until it receives notice to the contrary, each of the Master
Servicers, the Special Servicer and the Trustee shall be entitled to rely on the
preceding sentence with respect to the identity of the Directing
Certificateholder.
(f) If at any time a Book-Entry Certificate belongs to a Controlling
Class, the Trustee shall notify the related Certificateholders (through the
Depository) of such event.
(g) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates; (ii) the Directing Certificateholder may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Directing Certificateholder does not have any liability or duties to the Holders
of any Class of Certificates other than the Controlling Class; (iv) the
Directing Certificateholder may take actions that favor interests of the Holders
of the Controlling Class over the interests of the Holders of one or more other
Classes of Certificates; and (v) the Directing Certificateholder shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Directing Certificateholder or any director,
officer, employee, agent or principal thereof for having so acted.
(h) Until it receives notice to the contrary, each of the Master
Servicers, the Special Servicer and the Trustee shall be entitled to rely on the
most recent notification with respect to the identity of the Controlling Class
Certificateholder and the Directing Certificateholder.
(i) All requirements of the Master Servicers and the Special
Servicer to provide notices, reports, statements or other information (including
the access to information on a website) provided to the Directing
Certificateholder contained in this Agreement shall also apply to each Companion
Holder with respect to information relating to the related AB Mortgage Loan or
the Houston Galleria Loan, as applicable.
(j) With respect to the Houston Galleria Whole Loan, the Brookdale
Office Portfolio Loan Pair and the Jordan Creek Loan Pair, except during the
continuance of a Control Appraisal Event with respect to the related Whole Loan,
the rights of the Directing Certificateholder with respect to the related Whole
Loan shall instead be exercised by the related Companion Holder or Houston
Galleria Controlling Holder, as applicable, including the rights of the
Directing Certificateholder to receive or access any reports, information or
notices with respect to the related Whole Loan, and any such reports,
information or notices herein required to be delivered shall also be delivered
or provided to each Companion Holder with respect to such Whole Loans and the
Houston Galleria Controlling Holder. Following the occurrence and during the
continuance of a Houston Galleria Control Appraisal Event, the Directing
Certificateholder shall exercise such rights with respect to the Houston
Galleria Whole Loan in conjunction with the holders of the Houston Galleria Pari
Passu Companion Loans (or the controlling class of any Houston Galleria
Companion Loan Securities, if applicable), pursuant to the procedures set forth
in the Houston Galleria Intercreditor Agreement.
Section 3.29 Intercreditor Agreements. Each of the Master Servicers
and Special Servicer with respect to the Mortgage Loan it is servicing hereunder
acknowledges and agrees, as applicable, that each Loan Pair being serviced by it
under this Agreement and each Mortgage Loan with mezzanine debt is subject to
the terms and provisions of the related Intercreditor Agreement and each agrees
to service each such Loan Pair and each Mortgage Loan with mezzanine debt in
accordance with the related Intercreditor Agreement and this Agreement,
including, without limitation, effecting distributions and allocating
reimbursement of expenses in accordance with the related Intercreditor Agreement
and, in the event of any conflict, the related Intercreditor Agreement shall
govern. Notwithstanding anything to the contrary in this Agreement, each of the
Master Servicers and Special Servicer agrees not to take any action with respect
to a Loan Pair or the related Mortgaged Property without the prior consent of
the related Companion Holder to the extent that the related Intercreditor
Agreement provides that such Companion Holder is required to consent to such
action. To the extent consistent with the Servicing Standards, nothing herein
shall be deemed to override the provisions of the Intercreditor Agreements with
respect to the rights of the Companion Holders thereunder and in the event of
any inconsistency between the provisions of an Intercreditor Agreement and the
provisions of this Agreement relating to the rights and obligations of the
Trustee, as holder of the related Mortgage Loan, and the related Companion
Holder, the Intercreditor Agreement shall control with respect to such Loan
Pair. Each of the Master Servicers and Special Servicer acknowledges and agrees
that each Companion Holder and mezzanine lender may have the right to cure
certain defaults with respect to the related AB Mortgage Loan or the Houston
Galleria Whole Loan, as applicable, to purchase the related AB Mortgage Loan or
the Houston Galleria Whole Loan, as applicable, and to post certain collateral
to avoid a Control Appraisal Event; in each case, to the extent set forth in,
and pursuant to the terms and conditions of, the related Intercreditor
Agreement.
Neither the Master Servicers nor the Special Servicer shall have any
liability for any cost, claim or damage that arises from any entitlement in
favor of a Companion Holder under the related Intercreditor Agreement or
conflict between the terms of this Agreement and the terms of such Intercreditor
Agreement. Notwithstanding any provision of any Intercreditor Agreement that may
otherwise require the Master Servicers or the Special Servicer to abide by any
instruction or direction of a Companion Holder, neither the Master Servicers nor
the Special Servicer shall be required to comply with any instruction or
direction the compliance with which requires an Advance that constitutes or
would constitute a Nonrecoverable Advance. In no event shall any expense arising
from compliance with an Intercreditor Agreement constitute an expense to be
borne by the Master Servicers or Special Servicer for its own account without
reimbursement. In no event shall the Master Servicers or the Special Servicer be
required to consult with or obtain the consent of any Companion Holder unless
such Companion Holder has delivered notice of its identity and contact
information to each of the parties to this Agreement (upon which notice each of
the parties to this Agreement shall be conclusively entitled to rely). As of the
Closing Date, the contact information for the Companion Holders is set forth in
Section 11.05 under this Agreement.
No direction or disapproval of the Companion Holders shall (a)
require or cause the Master Servicers or Special Servicer to violate the terms
of a Mortgage Loan, applicable law or any provision of this Agreement, including
each Master Servicer's or Special Servicer's obligation to act in accordance
with the Servicing Standards and to maintain the REMIC status of each of the
Lower-Tier REMIC and the Upper-Tier REMIC or (b) result in the imposition of a
"prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (c) materially expand the scope of the Special Servicer's,
Trustee's or each Master Servicer's responsibilities under this Agreement.
Section 3.30 Companion Paying Agent. (a) Each Master Servicer shall
be the Companion Paying Agent with respect to the Mortgage Loans for which it is
responsible for servicing hereunder. The Companion Paying Agent undertakes to
perform such duties and only such duties as are specifically set forth herein.
(b) No provision of this Agreement shall be construed to relieve the
Companion Paying Agent from liability for its negligent failure to act, bad
faith or its own willful misfeasance; provided, however, that the duties and
obligations of the Companion Paying Agent shall be determined solely by the
express provisions of this Agreement. The Companion Paying Agent shall not be
liable except for the performance of such duties and obligations, no implied
covenants or obligations shall be read into this Agreement against the Companion
Paying Agent. In the absence of bad faith on the part of the Companion Paying
Agent, the Companion Paying Agent may conclusively rely, as to the truth and
correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instrument furnished to the Companion Paying Agent by any Person and which
on their face do not contradict the requirements of this Agreement.
(c) Upon the resignation or removal of the applicable Master
Servicer pursuant to Article VII of this Agreement, the applicable Companion
Paying Agent shall be deemed simultaneously to resign or be removed.
(d) This Section shall survive the termination of this Agreement or
the resignation or removal of the Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
Section 3.31 Companion Register. The Companion Paying Agent shall
maintain a register (the "Companion Register") on which it will record the names
and address of, and wire transfer instructions for, the Companion Holders from
time to time, to the extent such information is provided in writing to it by
each Companion Holder. The initial Companion Holders except with respect to the
Brookdale Office Portfolio Loan Pair, the Jordan Creek Loan Pair and the Houston
Galleria Whole Loan, along with their respective name, address, wiring
instructions and tax identification number, are listed on Exhibit T hereto, and
with respect to the Brookdale Office Portfolio Loan Pair, the Jordan Creek Loan
Pair and the Houston Galleria Whole Loan, in the related Intercreditor
Agreement. In the event a Companion Holder transfers a Companion Loan without
notice to the Companion Paying Agent, the Companion Paying Agent shall have no
liability for any misdirected payment in the Companion Loan and shall have no
obligation to recover and redirect such payment.
The Companion Paying Agent shall promptly provide the name and
address of the Companion Holder to any party hereto or any successor Companion
Holder upon written request and any such Person may, without further
investigation, conclusively rely upon such information. The Companion Paying
Agent shall have no liability to any Person for the provision of any such name
and address.
Section 3.32 Swap Contract.
(a) On or before the Closing Date, the Trustee, not in its
individual capacity but solely in its capacity as Trustee, on behalf of the
Trust, shall enter into the Swap Contract and related agreements with the Swap
Counterparty.
(b) On the Business Day prior to each P&I Advance Date, based on the
reports provided by the Master Servicer pursuant to Section 3.12(e), information
that the Trustee obtains from the Swap Counterparty and the Swap Contract, and
subject to the priorities set forth in Sections 4.01(a), 4.01(b) and 4.01(d)
hereof, the Trustee shall calculate the Class A-2FL Net Swap Payment and notify
the Swap Counterparty in accordance with the terms of the Swap Contract.
(c) No later than 4:00 p.m. New York City time on each Distribution
Date, the Trustee shall remit the Class A-2FL Net Swap Payment, if any, to the
Swap Counterparty from the Floating Rate Account; provided, that upon the
occurrence and during the continuation of a Class A-2FL Distribution Conversion,
the Trustee shall not make such payments to the Swap Counterparty. Promptly upon
receipt of any payment or other receipt in respect of the Swap Contract, the
Trustee shall deposit the same into the Floating Rate Account.
(d) The Trustee shall at all times enforce the Trust's rights under
the Swap Contract. In the event of a Swap Default, the Trustee shall promptly
provide written notice to the Holders of the Class A-2FL Certificates and shall
be required, subject to the Trustee's determination that costs of enforcement
will be recoverable from or indemnified by the Class A-2FL holders, to take such
actions (following the expiration of any applicable grace period specified in
the Swap Contract), unless otherwise directed in writing by the Holders of 25%
(by Certificate Balance) of the Class A-2FL Certificates, to enforce the rights
of the Trust under the Swap Contract as may be permitted by the terms thereof
and use any Swap Termination Fees received from the Swap Counterparty to enter
into a replacement interest rate swap contract on substantially identical terms
or on such other terms reasonably acceptable to the Trustee with a replacement
swap counterparty that would not cause a Rating Agency Trigger Event, subject,
in each case, to written confirmation by the Rating Agencies that such action
will not result in a qualification, downgrade or withdrawal of the then-current
ratings of the Certificates. If the costs attributable to entering into a
replacement interest rate swap contract would exceed the amount of any Swap
Termination Fees, a replacement interest rate swap contract shall not be entered
into and any such proceeds will instead be distributed, pro rata, to the Holders
of the Class A-2FL Certificates on the immediately succeeding Distribution Date.
The Trustee shall be entitled to require reasonable assurances of payment
(including, without limitation, reasonable indemnity therefor) from the Holders
of the Class A-2FL Certificates prior to the incurrance of any costs in
connection with the enforcement of the Swap Contract.
Any Class A-2FL Distribution Conversion shall become permanent
following the determination by the Trustee not to enter into a replacement
interest rate swap contract and distribution of any Swap Termination Fees to the
Holders of the Class A-2FL Certificates. Any such Swap Default (or termination
of the Swap Contract) and the consequent Class A-2FL Distribution Conversion
shall not, in and of itself, constitute an Event of Default under this
Agreement.
Upon any change (or notification to the Trustee that such change is
imminent) in the payment terms on the Class A-2FL Certificates, including as a
result of a Class A-2FL Distribution Conversion, termination of a Class A-2FL
Distribution Conversion, a Swap Default or the cure of a Swap Default, the
Trustee shall promptly notify DTC of the change in payment terms.
(e) In the event that the Swap Contract is terminated and no
replacement interest rate swap agreement is entered into within 30 days of such
termination, the Trustee shall provide notice of such termination to the Class
A-2FL Certificateholders, which notice shall include: "The Swap Contract with
respect to the Class A-2FL Certificates is terminated as of [date].
Certificateholders and beneficial owners that are Plans are advised that the
Exemption will no longer apply to the Class A-2FL Certificates, effective 60
days after the receipt of this notice. "Exemption", as used in this notice,
shall mean Prohibited Transaction Exemption 2002-19, 67 Fed. Reg. 14,979 (March
28, 2002), granted by the U.S. Department of Labor to X.X. Xxxxxx Securities
Inc. All other capitalized terms used in this notice shall have the meaning
assigned to them in the Pooling and Servicing Agreement."
(f) Any costs and expenses related to the Swap Contract (other than
Net Swap Payments) will only be payable (subsequent to the distribution of all
amounts of principal and interest and reimbursement of Collateral Support
Deficits payable to the Class A-2FL Certificates) from the Floating Rate
Account, and in no circumstances will constitute Additional Trust Fund Expenses.
(g) The Trustee shall establish a Swap Counterparty Collateral
Account. The Trustee shall deposit all collateral received from the Swap
Counterparty under any Credit Support Annex (as defined in the Swap Contract) of
the Swap Contract into the Swap Counterparty Collateral Account. The only
permitted withdrawal from or application of funds on deposit in, or otherwise to
the credit of, the Swap Counterparty Collateral Account shall be (i) for
application to obligations of the Swap Counterparty under a Swap Contract if
such Swap Contract becomes subject to early termination or upon default by the
relevant Swap Counterparty or (ii) to return collateral to the relevant Swap
Counterparty when and as required by a Swap Contract. The Trustee agrees to give
the Swap Counterparty prompt notice if it obtains knowledge that the Swap
Counterparty Collateral Account or any funds on deposit therein or otherwise to
the credit of the Swap Counterparty Collateral Account, shall become subject to
any writ, order, judgment, warrant of attachment, execution or similar process.
Funds credited to the Swap Counterparty Collateral Account shall be applied as
contemplated in the Swap Contract. Subject to the terms of the Swap Contract,
proceeds of liquidation of any Swap Contract collateral (if such Swap Contract
becomes subject to early termination or upon default by the relevant Swap
Counterparty) shall be deposited in the Floating Rate Account for application as
applicable.
Section 3.33 Certain Matters Relating to the Future Securitization
of the Serviced Pari Passu Companion Loans.
(a) Each of the Trustee, Master Servicer No. 1 and the Special
Servicer shall, and Master Servicer No. 1 and the Special Servicer shall use
reasonable efforts to cause any sub-servicer appointed with respect to any
Serviced Pari Passu Companion Loan to, upon request or notice from such Mortgage
Loan Seller, cooperate with any Mortgage Loan Seller that is selling a Serviced
Pari Passu Companion Loan into a securitization that is required to comply with
Regulation AB (a "Regulation AB Companion Loan Securitization") and, to the
extent necessary in order to comply with Regulation AB, provide to the Mortgage
Loan Seller information about itself that such Mortgage Loan Seller reasonably
requires to meet the requirements of Items 1117 and 1119 and paragraphs (b),
(c)(3), (c)(4) and (c)(5) of Item 1108 of Regulation AB and shall cooperate with
such Mortgage Loan Seller to provide such other information as may be necessary
to comply with the requirements of Regulation AB. Each of the Trustee, Master
Servicer No. 1 and the Special Servicer understands that such information may be
included in the offering material related to a Regulation AB Companion Loan
Securitization and agrees to indemnify and hold the related Mortgage Loan Seller
harmless for any costs, liabilities, fees and expenses incurred by the Mortgage
Loan Seller as a result of any material misstatements or omissions in any such
offering material to the extent that such material misstatement or omission was
made in reliance upon any such information provided by the Trustee (where such
information pertains to LaSalle Bank National Association individually and not
to any specific aspect of the Trustee's duties or obligations under this
Agreement), Master Servicer No. 1 (where such information pertains to Midland
Loan Services, Inc. individually and not to any specific aspect of the Master
Servicer No. 1's duties or obligations under this Agreement) and the Special
Servicer (where such information pertains to Midland Loan Services, Inc.
individually and not to any specific aspect of the Special Servicer's duties or
obligations under this Agreement), as applicable, to such Mortgage Loan Seller
as required by this clause (a).
(b) Each of the Trustee, Master Servicer No. 1 and the Special
Servicer shall, and Master Servicer No. 1 and the Special Servicer shall use
reasonable efforts to cause any sub-servicer appointed with respect to any
Serviced Pari Passu Companion Loan to, upon request or notice from such parties
(which request or notice may be given once at the closing of such Regulation AB
Companion Loan Securitization instead of each time a filing is required),
cooperate with the trustee, master servicer or special servicer for any
Regulation AB Companion Loan Securitization in preparing each Form 10-D required
to be filed by such Regulation AB Companion Loan Securitization (until January
30 of the first year in which the trustee for such Regulation AB Companion Loan
Securitization files a Form 15 Suspension Notice with respect to the related
trust) and shall provide to such trustee or master servicer within the time
period set forth in the pooling and servicing agreement for such Regulation AB
Companion Loan Securitization such information relating to the related Serviced
Pari Passu Companion Loan as may be necessary for the servicer and trustee of
the Regulation AB Companion Loan Securitization to comply with the reporting
requirements of Regulation AB; provided however that any parties to any
Regulation AB Companion Loan Securitization shall consult with the Trustee,
Master Servicer No. 1 and the Special Servicer (and the Master Servicer No. 1
shall consult with the Primary Servicer and any sub-servicer appointed with
respect to any Serviced Pari Passu Companion Loan), and the Trustee, Master
Servicer No. 1 and the Special Servicer shall cooperate with such parties in
respect of establishing the time periods for preparation of the Form 10-D
reports in the documentation for such Regulation AB Companion Loan
Securitization.
(c) Each of the Trustee, Master Servicer No. 1 and the Special
Servicer shall, and Master Servicer No. 1 and the Special Servicer shall use
reasonable efforts to cause any sub-servicer appointed with respect to any
Serviced Pari Passu Companion Loan to, upon request from such trustee (which
request or notice may be given once at the closing of such Regulation AB
Companion Loan Securitization instead of each time a filing is required),
provide the trustee under a Regulation AB Companion Loan Securitization (until
January 30 of the first year in which the trustee for such Regulation AB
Companion Loan Securitization files a Form 15 Suspension Notice with respect to
the related trust) information with respect to any event that is required to be
disclosed under Form 8-K with respect to the related Serviced Pari Passu
Companion Loan within two Business Days after the occurrence of such event of
which it has knowledge.
(d) On or before March 15 of each year (or March 14 if a leap year)
during which a Regulation AB Companion Loan Securitization is required to file
an annual report on Form 10-K (and not in respect of any year in which such
Regulation AB Companion Loan Securitization is not required to file an annual
report on Form 10-K because a Form 15 Suspension Notice with respect to the
related trust was filed), each of the Trustee, Master Servicer No. 1 and the
Special Servicer shall, and Master Servicer No. 1 and the Special Servicer shall
use reasonable efforts to cause any sub-servicer appointed with respect to any
Serviced Pari Passu Companion Loan to, upon request from such trustee (which
request or notice may be given once at the closing of such Regulation AB
Companion Loan Securitization instead of each time a filing is required),
provide, with respect to itself, to the trustee under such Regulation AB
Companion Loan Securitization, to the extent required pursuant to Item 1122 of
Regulation AB, (i) a report on an assessment of compliance with the servicing
criteria to the extent required pursuant to Item 1122(a) of Regulation AB, (ii)
a registered accounting firm's attestation report on such Person's assessment of
compliance with the applicable servicing criteria to the extent required
pursuant to Item 1122(b) of Regulation AB and (iii) such other information as
may be required pursuant to Item 1122(c) of Regulation AB.
(e) On or before March 15 of each year (or March 14 if a leap year)
during which a Regulation AB Companion Loan Securitization is required to file
an annual report on Form 10-K (and not in respect of any year in which such
Regulation AB Companion Loan Securitization is not required to file an annual
report on Form 10-K because a Form 15 Suspension Notice with respect to the
related trust was filed), each of the Trustee, Master Servicer No. 1 and the
Special Servicer shall, and Master Servicer No. 1 and the Special Servicer shall
use reasonable efforts to cause any sub-servicer appointed with respect to any
Serviced Pari Passu Companion Loan to, to the extent required pursuant to Item
1123 of Regulation AB, deliver, with respect to itself, to the trustee, upon
request from such trustee (which request or notice may be given once at the
closing of such Regulation AB Companion Loan Securitization instead of each time
a filing is required), under such Regulation AB Companion Loan Securitization a
servicer compliance statement signed by an authorized officer of such Person
that satisfies the requirements of Item 1123 of Regulation AB.
(f) Each of the Trustee, Master Servicer No. 1 and the Special
Servicer, and Master Servicer No. 1 and Special Servicer shall use reasonable
efforts to cause a sub-servicer to agree, (severally but not jointly) to
indemnify (such indemnity limited to each such parties respective failure
described below) and hold the related Mortgage Loan Seller, depositor, trustee
or master servicer under a Regulation AB Companion Loan Securitization harmless
for any costs, liabilities, fees and expenses incurred by such Mortgage Loan
Seller, depositor, trustee or master servicer as a result of any failure by the
Trustee, Master Servicer No. 1 and the Special Servicer, as applicable, to
comply with the reporting requirements to the extent applicable set forth under
Sections 3.33(b), (c), (d) or (e) above.
(g) Each subservicing agreement related to any Serviced Pari Passu
Companion Loan shall contain a provision requiring the related Sub-Servicer to
provide to Master Servicer No. 1 or Special Servicer, as applicable,
information, reports and certificates with respect to itself comparable to any
information, reports or certificates required to be provided by Master Servicer
No. 1 or Special Servicer pursuant to this Section 3.30, even if such
Sub-Servicer is not otherwise required to provide such information, reports or
certificates to any Person in order to comply with Regulation AB. Such
information, reports or certificates shall be provided to Master Servicer No. 1
or Special Servicer, as applicable, no later than two Business Days prior to the
date on which Master Servicer No. 1 or Special Servicer, as applicable, is
required to deliver its comparable information, reports or certificates pursuant
to this Section 3.33.
[End of Article III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions. (a) On each Distribution Date, to the
extent of the Available Distribution Amount for such Distribution Date, the
Trustee shall be deemed to transfer the Lower-Tier Regular Distribution Amount
from the Lower-Tier Distribution Account to the Upper-Tier Distribution Account
(subject to the provisions of the penultimate paragraph of Section 3.04(b) with
respect to the Class A-2FL Net Swap Payment) in the amounts and priorities set
forth in Section 4.01(b) with respect to each Class of Uncertificated Lower-Tier
Interests (other than the Uncertificated Class HG Lower-Tier Interests), and
immediately thereafter, shall make distributions thereof from the Upper-Tier
Distribution Account in the following order of priority, satisfying in full, to
the extent required and possible, each priority before making any distribution
with respect to any succeeding priority:
(i) first, concurrently (A) to the Holders of the Class A-1
Certificates, the Class A-2FL Regular Interest, the Class A-2
Certificates, the Class A-3 Certificates, the Class A-4 Certificates and
the Class A-SB Certificates, pro rata, (based upon their respective
entitlements to interest for such Distribution Date), in respect of
interest, from the Loan Group 1 Available Distribution Amount and up to an
amount equal to the aggregate Interest Distribution Amount in respect of
such Classes for such Distribution Date, (B) to the Holders of the Class
A-1A Certificates, in respect of interest, from the Loan Group 2 Available
Distribution Amount and up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class for such Distribution Date
and (C) to the Holders of the Class X-1 Certificates and the Class X-2
Certiticates, pro rata, in respect of interest up to an amount equal to
the Interest Distribution Amount payable in respect of such Classes of
Certificates for such Distribution Date; 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 Interest
Distribution Amount provided above, payable in respect of any Class A
Certificates or Class X Certificates on such Distribution Date, then the
entire Available Distribution Amount shall be applied to make
distributions of interest to the Holders of the respective Classes of the
Class A Certificates and the Class X Certificates, up to an amount equal
to, and pro rata as among such Classes in accordance with, the Interest
Distribution Amount in respect of each such Class of Certificates for such
Distribution Date;
(ii) second, to the Holders of the Class A-1 Certificates, the Class
A-2FL Regular Interest, the Class A-2 Certificates, the Class A-3
Certificates, the Class A-4 Certificates, the Class A-SB Certificates and
the Class A-1A Certificates, in reduction of the Certificate Balances
thereof, concurrently: (A)(1) first, to the Holders of the Class A-SB
Certificates, in an amount up to the Loan Group 1 Principal Distribution
Amount and, after the outstanding Certificate Balance of the Class A-1A
Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount for such Distribution Date remaining after the
payments specified in clause (B) below have been made on such Distribution
Date, until the Certificate Balance of the Class A-SB Certificates is
reduced to the Class A-SB Planned Principal Balance; (2) second, to the
Holders of the Class A-1 Certificates, in an amount up to the Loan Group 1
Principal Distribution Amount (or a portion of it remaining after payments
specified in clause (A)(1) above) and, after the outstanding Certificate
Balance of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount, in each case, to the extent
remaining after payments as specified in clause (A)(1) above and clause
(B) below have been made on such Distribution Date, until the outstanding
Certificate Balance of the Class A-1 Certificates has been reduced to
zero; (3) third, to the Holders of the Class A-2FL Regular Interest in an
amount up to the Loan Group 1 Principal Distribution Amount (or a portion
of it remaining after payments specified in clauses (A)(1) and (2) above)
and, after the outstanding Certificate Balance of the Class A-1A
Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, in each case, to the extent remaining after payments
as specified in clauses (A)(1) and (2) above and clause (B) below have
been made on such Distribution Date, until the outstanding Certificate
Balance of the Class A-2FL Regular Interest has been reduced to zero; (4)
fourth, to the Holders of the Class A-2 Certificates, in an amount up to
the Loan Group 1 Principal Distribution Amount (or a portion of it
remaining after payments as specified in clauses (A)(1), (2) and (3)
above) and, after the outstanding Certificate Balance of the Class A-1A
Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, in each case, to the extent remaining after payments
as specified in clauses (A)(1), (2) and (3) above and clause (B) below
have been made on such Distribution Date, until the outstanding
Certificate Balance of the Class A-2 Certificates has been reduced to
zero; (5) fifth, to the Holders of the Class A-3 Certificates, in an
amount up to the Loan Group 1 Principal Distribution Amount (or a portion
of it remaining after payments as specified in clauses (A)(1), (2), (3)
and (4) above) and, after the outstanding Certificate Balance of the Class
A-1A Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount, in each case, to the extent remaining after payments
as specified in clauses (A)(1), (2), (3) and (4) above and clause (B)
below have been made on such Distribution Date, until the outstanding
Certificate Balance of the Class A-3 Certificates has been reduced to
zero; (6) sixth, to the Holders of the Class A-4 Certificates, in an
amount up to the Loan Group 1 Principal Distribution Amount (or the
portion of it remaining after payments specified in clauses (A)(1), (2),
(3), (4) and (5) above) and, after the outstanding Certificate Balance of
the Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount, in each case, to the extent remaining after
payments as specified in clauses (A)(1), (2), (3), (4) and (5) above and
clause (B) below have been made on such Distribution Date, until the
outstanding Certificate Balance of the Class A-4 Certificates has been
reduced to zero; (7) seventh, to the Holders of the Class A-SB
Certificates, in an amount up to the Loan Group 1 Principal Distribution
Amount (or the portion of it remaining after payments specified in clauses
(A)(1), (2), (3), (4), (5), and (6) above) and, after the outstanding
Certificate Balance of the Class A-1A Certificates has been reduced to
zero, the Loan Group 2 Principal Distribution Amount, in each case, to the
extent remaining after payments as specified in clauses (A)(1), (2), (3),
(4), (5) and (6) above and (B) below have been made on such Distribution
Date, until the outstanding Certificate Balance of the Class A-SB
Certificates has been reduced to zero; and (B) to the Holders of the Class
A-1A Certificates, in an amount up to the Loan Group 2 Principal
Distribution Amount and, after the outstanding Certificate Balances of the
Class A-4 and Class A-SB Certificates have been reduced to zero, the Loan
Group 1 Principal Distribution Amount remaining after payments specified
in clauses (A)(1), (2), (3), (4), (5), (6) and (7) above have been made on
such Distribution Date, until the Certificate Balance of the Class A-1A
Certificates has been reduced to zero;
(iii) third, to the Holders of the Class A-1 Certificates, the Class
A-2FL Regular Interest, Class A-2 Certificates, Class A-3 Certificates,
Class A-4 Certificates, Class A-SB Certificates and Class A-1A
Certificates, pro rata (based upon the aggregate unreimbursed Collateral
Support Deficit allocated to each such Class), until all amounts of
Collateral Support Deficit previously allocated to such Classes, but not
previously reimbursed, have been reimbursed in full;
(iv) fourth, to the Holders of the Class A-M Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(v) fifth, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates) and the Class A-2FL
Regular Interest have been reduced to zero, to the Holders of the Class
A-M Certificates, in reduction of the Certificate Balances thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates
on such Distribution Date), until the outstanding Certificate Balances of
the Class A-M Certificates have reduced to zero;
(vi) sixth, to the Holders of the Class A-M Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class
A-M Certificates, but not previously reimbursed, have been reimbursed in
full;
(vii) seventh, to the Holders of the Class A-J Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amounts in respect of such Class of Certificates for such
Distribution Date;
(viii) eighth, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest and the Class A-M Certificates have been reduced to zero,
to the Holders of the Class A-J Certificates in reduction of the
Certificate Balances thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates and the Class A-M
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class A-J Certificates has been reduced to zero;
(ix) ninth, to the Holders of the Class A-J Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class
A-J Certificates, but not previously reimbursed, have been reimbursed in
full;
(x) tenth, to the Holders of Class B Certificates, in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amounts in respect of such Class of Certificates for such Distribution
Date;
(xi) eleventh, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, the Class A-M Certificates and the Class A-J
Certificates have been reduced to zero, to the Holders of the Class B
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-M Certificates and the Class A-J Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class B
Certificates has been reduced to zero;
(xii) twelfth, to the Holders of the Class B Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class B
Certificates, as applicable, but not previously reimbursed, have been
reimbursed in full;
(xiii) thirteenth, to the Holders of the Class C Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xiv) fourteenth, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, the Class A-M Certificates, the Class A-J Certificates
and the Class B Certificates have been reduced to zero, to the Holders of
the Class C Certificates, in reduction of the Certificate Balance thereof,
an amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A
Certificates, Class A-M Certificates, Class A-J Certificates and the Class
B Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class C Certificates has been reduced to zero;
(xv) fifteenth, to the Holders of the Class C Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class C Certificates, but not previously reimbursed, have been reimbursed
in full;
(xvi) sixteenth, to the Holders of the Class D Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xvii) seventeenth, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, the Class A-M Certificates, the Class A-J Certificates,
the Class B Certificates and Class C Certificates have been reduced to
zero, to the Holders of the Class D Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class A Certificates, Class A-M Certificates, the Class A-J
Certificates, Class B Certificates and the Class C Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
D Certificates has been reduced to zero;
(xviii) eighteenth, to the Holders of the Class D Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class D Certificates, but not previously reimbursed, have been
reimbursed in full;
(xix) nineteenth, to the Holders of the Class E Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xx) twentieth, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, the Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates and the Class D Certificates
have been reduced to zero, to the Holders of the Class E Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates and the Class D Certificates on such Distribution Date),
until the outstanding Certificate Balance of the Class E Certificates has
been reduced to zero;
(xxi) twenty-first, to the Holders of the Class E Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class E Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxii) twenty-second, to the Holders of the Class F Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxiii) twenty-third, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, the Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates and Class
E Certificates have been reduced to zero, to the Holders of the Class F
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates and Class E Certificates on
such Distribution Date), until the outstanding Certificate Balance of the
Class F Certificates has been reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class F Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class F Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxv) twenty-fifth, to the Holders of the Class G Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxvi) twenty-sixth, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, the Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates and Class F Certificates have been reduced to zero, to the
Holders of the Class G Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates and Class F Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class G Certificates has been
reduced to zero;
(xxvii) twenty-seventh, to the Holders of the Class G Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class G Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxviii) twenty-eighth, to the Holders of the Class H Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxix) twenty-ninth, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates and Class G Certificates have been
reduced to zero, to the Holders of the Class H Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates and Class G Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class H Certificates has been
reduced to zero;
(xxx) thirtieth, to the Holders of the Class H Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class H Certificates, but not previously reimbursed, have been reimbursed
in full;
(xxxi) thirty-first, to the Holders of the Class J Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxii) thirty-second, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates and Class H
Certificates have been reduced to zero, to the Holders of the Class J
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates and Class H Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
J Certificates has been reduced to zero;
(xxxiii) thirty-third, to the Holders of the Class J Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class J Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxiv) thirty-fourth, to the Holders of the Class K Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxv) thirty-fifth, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates and Class J Certificates have been reduced to zero, to the
Holders of the Class K Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-J Certificates, Class B Certificates, Class
C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates and Class J
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class K Certificates has been reduced to zero;
(xxxvi) thirty-sixth, to the Holders of the Class K Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class K Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxvii) thirty-seventh, to the Holders of the Class L Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxviii) thirty-eighth, after the Certificate Balances of the Class
A Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates and Class K Certificates have been
reduced to zero, to the Holders of the Class L Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class L Certificates has been
reduced to zero;
(xxxix) thirty-ninth, to the Holders of the Class L Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class L Certificates, but not previously reimbursed, have been
reimbursed in full;
(xl) fortieth, to the Holders of the Class M Certificates in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xli) forty-first, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates and Class L
Certificates have been reduced to zero, to the Holders of the Class M
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates and Class L Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
M Certificates has been reduced to zero;
(xlii) forty-second, to the Holders of the Class M Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class M Certificates, but not previously reimbursed, have been
reimbursed in full;
(xliii) forty-third, to the Holders of the Class N Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xliv) forty-fourth, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates and Class M Certificates have been reduced to zero, to the
Holders of the Class N Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates and Class M Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class N Certificates has been
reduced to zero;
(xlv) forty-fifth, to the Holders of the Class N Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class N Certificates, but not previously reimbursed, have been reimbursed
in full;
(xlvi) forty-sixth, to the Holders of the Class O Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xlvii) forty-seventh, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates and Class N Certificates have been
reduced to zero, to the Holders of the Class O Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates and Class N Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class O Certificates has been
reduced to zero;
(xlviii) forty-eighth, to the Holders of the Class O Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class O Certificates, but not previously reimbursed, have been
reimbursed in full;
(xlix) forty-ninth, to the Holders of the Class P Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(l) fiftieth, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates and Class O
Certificates have been reduced to zero, to the Holders of the Class P
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates,
Class A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates, Class N Certificates and Class O Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
P Certificates has been reduced to zero;
(li) fifty-first, to the Holders of the Class P Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class P Certificates, but not previously reimbursed, have been reimbursed
in full;
(lii) fifty-second, to the Holders of the Class Q Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(liii) fifty-third, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates, Class O
Certificates and Class P Certificates have been reduced to zero, to the
Holders of the Class Q Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A Certificates, Class A-M Certificates, Class A-J Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates, Class O
Certificates and Class P Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class Q Certificates has been
reduced to zero;
(liv) fifty-fourth, to the Holders of the Class Q Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class Q Certificates, but not previously reimbursed, have been
reimbursed in full;
(lv) fifty-fifth, to the Holders of the Class NR Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(lvi) fifty-sixth, after the Certificate Balances of the Class A
Certificates (other than the Class A-2FL Certificates), the Class A-2FL
Regular Interest, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates, Class O
Certificates, Class P Certificates and Class Q Certificates have been
reduced to zero, to the Holders of the Class NR Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M
Certificates, Class N Certificates, Class O Certificates, Class P
Certificates and Class Q Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class NR Certificates has been
reduced to zero;
(lvii) fifty-seventh, to the Holders of the Class NR Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class NR Certificates, but not previously reimbursed, have been
reimbursed in full; and
(lviii) fifty-eighth, to the Holders of the Class R Certificates,
the amount, if any, of the Available Distribution Amount remaining in the
Upper-Tier Distribution Account with respect to such Distribution Date.
If, in connection with any Distribution Date, the Trustee has
reported the amount of an anticipated distribution to DTC based on the receipt
of payments as of the Determination Date and additional Monthly Payments,
balloon payments or unscheduled principal payments are subsequently received by
the Master Servicer and required to be part of the Available Distribution Amount
for such Distribution Date, the Master Servicer shall promptly notify the
Trustee and the Trustee will use commercially reasonable efforts to cause DTC to
make the revised distribution on a timely basis on such Distribution Date. None
of the Master Servicer, the Special Servicer or the Trustee shall be liable or
held responsible for any resulting delay in the making of such distribution to
Certificateholders solely on the basis of the actions described in the preceding
sentence.
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions in respect of principal or
reimbursement of Collateral Support Deficit in an amount equal to the amount of
principal or reimbursement of Collateral Support Deficit actually distributable
to its respective Related Certificates as provided in Sections 4.01(a), 4.01(c)
and 4.01(d) (in the case of (i) the Class A-1 Certificates, first, to the Class
LA-1-1 Uncertificated Interest, second, to the Class LA-1-2 Uncertificated
Interest, third, to the Class LA-1-3 Uncertificated Interest, fourth, to the
Class LA-1-4 Uncertificated Interest, and fifth, to the Class LA-1-5
Uncertificated Interest, in each case, until reduced to zero, (ii) the Class
A-1A Certificates, first, to the Class LA-1A-1 Uncertificated Interest, second,
to the Class LA-1A-2 Uncertificated Interest, third, to the Class LA-1A-3
Uncertificated Interest, fourth, to the Class LA-1A-4 Uncertificated Interest,
fifth, to the Class LA-1A-5 Uncertificated Interest, sixth, to the Class LA-1A-6
Uncertificated Interest, seventh, to the Class LA-1A-7 Uncertificated Interest,
eighth, to the Class LA-1A-8 Uncertificated Interest, ninth, to the Class
LA-1A-9 Uncertificated Interest, tenth, to the Class LA-1A-10 Uncertificated
Interest, eleventh, to the Class LA-1A-11 Uncertificated Interest, twelfth, to
the Class LA-1A-12 Uncertificated Interest, thirteenth, to the Class LA-1A-13
Uncertificated Interest, fourteenth, to the Class LA-1A-14 Uncertificated
Interest, and fifteenth, to the Class LA-1A-15 Uncertificated Interest, in each
case, until reduced to zero, (iii) the Class A-2FL Regular Interest, first, to
the Class LA-2FL-1 Uncertificated Interest, second, to the Class LA-2FL-2
Uncertificated Interest, and third, to the Class LA-2FL-3 Uncertificated
Interest, (iv) the Class A-2 Certificates, first, to the Class LA-2-1
Uncertificated Interest, and second, to the Class LA-2-2 Uncertificated
Interest, in each case, until reduced to zero, (v) the Class A-3 Certificates,
first, to the Class LA-3-1 Uncertificated Interest, and second, to the Class
LA-3-2 Uncertificated Interest, in each case, until reduced to zero, (vi) the
Class A-4 Certificates, first, to the Class LA-4-1 Uncertificated Interest,
second, to the Class LA-4-2 Uncertificated Interest, third, to the Class LA-4-3
Uncertificated Interest, fourth, to the Class LA-4-4 Uncertificated Interest,
fifth, to the Class LA-4-5 Uncertificated Interest, sixth, to the Class LA-4-6
Uncertificated Interest and seventh, to the Class LA-4-7 Uncertificated
Interest, in each case, until reduced to zero, (vii) the Class A-SB
Certificates, first, to the Class LA-SB-1 Uncertificated Interest, second, to
the Class LA-SB-2 Uncertificated Interest, third, to the Class LA-SB-3
Uncertificated Interest, fourth, to the Class LA-SB-4 Uncertificated Interest,
fifth, to the Class LA-SB-5 Uncertificated Interest, and sixth, to the Class
LA-SB-6 Uncertificated Interest, in each case, until reduced to zero, (viii) the
Class G Certificates, first, to the Class LG-1 Uncertificated Interest, second,
to the Class LG-2 Uncertificated Interest, and third, to the Class LG-3
Uncertificated Interest, in each case, until reduced to zero, (ix) the Class H
Certificates, first, to the Class LH-1 Uncertificated Interest, second to the
Class LH-2 Uncertificated Interest, and third, to the Class LH-3 Uncertificated
Interest, in each case, until reduced to zero, (x) the Class J Certificates,
first, to the Class LJ-1 Uncertificated Interest, second, to the Class LJ-2
Uncertificated Interest and third, to the Class LJ-3 Uncertificated Interest, in
each case, until reduced to zero, (xi) the Class K Certificates, first, to the
Class LK-1 Uncertificated Interest, second, to the Class LK-2 Uncertificated
Interest, and third, to the Class LK-3 Uncertificated Interest, in each case,
until reduced to zero, (xii) the Class L Certificates, first, to the Class LL-1
Uncertificated Interest, and second, to the Class LL-2 Uncertificated Interest,
in each case, until reduced to zero, (xiii) the Class M Certificates, first, to
the Class LM-1 Uncertificated Interest, and second, to the Class LM-2
Uncertificated Interest, in each case, until reduced to zero and (xiv) the Class
Q Certificates, first, to the Class LQ-1 Uncertificated Interest and second, to
the Class LQ-2 Uncertificated Interest, in each case, until reduced to zero.
On each Distribution Date, each Uncertificated Lower-Tier Interest
(other than the Uncertificated Class HG Lower-Tier Interests) shall be deemed to
receive distributions in respect of interest in an amount equal to the Interest
Distribution Amount in respect of its Related Certificates (in the case of each
of (i) the Class LA-1-1, Class LA-1-2, Class LA-1-3, Class LA-4 and Class LA-5
Uncertificated Interests, (ii) the Class LA-1A-1, Class LA-1A-2, Class LA-1A-3,
Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class LA-1A-8, Class
LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class LA-1A-13, Class
LA-1A-14 and Class LA-1A-15 Uncertificated Interests, (iii) the Class LA-2FL-1,
Class LA-2FL-2 and Class LA-2FL-3 Uncertificated Interests; (iv) the Class
LA-2-1 and Class LA-2-2 Uncertificated Interests, (v) the Class LA-3-1 and Class
LA-3-2 Uncertificated Interests, (vi) the Class LA-4-1, Class LA-4-2, Class
LA-4-3, Class LA-4-4, Class LA-4-5, Class LA-4-6 and Class LA-4-7 Uncertificated
Interests, (vii) the Class LA-SB-1, Class LA-SB-2, Class LA-SB-3, Class LA-SB-4,
Class LA-SB-5 and Class LA-SB-6 Uncertificated Interests, (viii) the Class LG-1,
Class LG-2 and Class LG-3 Uncertificated Interests, (ix) the Class LH-1, Class
LH-2 and Class LH-3 Uncertificated Interests, (x) the Class LJ-1, Class LJ-2 and
Class LJ-3 Uncertificated Interests, (xi) the Class LK-1, Class LK-2 and Class
LK-3 Uncertificated Interests, (xii) the Class LL-1 and Class LL-2
Uncertificated Interests, (xiii) the Class LM-1 and LK-M Uncertificated
Interests, and (xiv) the Class LQ-1 and Class LQ-2 Uncertificated Interests pro
rata, based on their respective Certificate Balances) and its related Component
of the Class X-1 Certificates and Class X-2 Certificates, in each case to the
extent actually distributable thereon as provided in Section 4.01(a). For this
purpose, interest distributed on the Class X-1 Certificates and Class X-2
Certificates shall be treated as having been paid to their respective Components
pro rata, based on the interest accrued with respect thereto at its Class X-1
Strip Rate or Class X-2 Strip Rate. Such amounts distributed to the
Uncertificated Lower-Tier Interests (other than the Uncertificated Class HG
Lower-Tier Interests) in respect of principal and interest with respect to any
Distribution Date are referred to herein collectively as the "Lower-Tier Regular
Distribution Amount," and shall be made by the Trustee by deeming such
Lower-Tier Regular Distribution Amount to be deposited in the Upper-Tier
Distribution Account. The Lower-Tier HG Distribution Amount shall be deemed
distributed to the Uncertificated Class HG Lower-Tier Interests at the same time
and in the same amounts as their Related Certificates, and set forth in Section
4.01(d). Such amounts distributed to the Uncertificated Class HG Lower-Tier
Interests in respect of principal and interest with respect to any Distribution
Date are referred to herein collectively as the "Lower-Tier HG Distribution
Amount," and shall be made by the Trustee by deeming such Lower-Tier HG
Distribution Amount to be withdrawn from the Lower-Tier REMIC to be deposited in
the Upper-Tier Distribution Account.
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest equals the Certificate Balance of the Related Certificates
with respect thereto (in the case of the aggregate of (i) the Class LA-1-1,
Class LA-1-2, Class LA-1-3, Class LA-1-4 and Class LA-1-5 Uncertificated
Interests, the Class A-1 Certificates, (ii) the Class LA-1A-1, Class LA-1A-2,
Class LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7 and
Class LA-1A-8, Class LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12,
Class LA-1A-13, Class LA-1A-14 and Class LA-1A-15 Uncertificated Interests, the
Class A-1A Certificates, (iii) the Class LA-2FL-1, Class LA-2FL-2 and Class
LA-2FL-3 Uncertificated Interests, the Class A-2FL Regular Interest, (iv) the
Class LA-2-1 and Class LA-2-2 Uncertificated Interests, the Class A-2
Certificates, (v) the Class LA-3-1 and Class LA-3-2 Uncertificated Interests,
the Class A-3 Certificates, (vi) the Class LA-4-1, Class LA-4-2, Class LA-4-3,
Class LA-4-4, Class LA-4-5, Class LA-4-6 and Class LA-4-7 Uncertificated
Interests, the Class A-4 Certificates, (vii) the Class LA-SB-1, Class LA-SB-2,
Class LA-SB-3, Class LA-SB-4, Class LA-SB-5 and Class LA-SB-6 Uncertificated
Interests, the Class A-SB Certificates, (viii) the Class LG-1, Class LG-2 and
Class LG-3 Uncertificated Interests, the Class G Certificates, (ix) the Class
LH-1 and Class LH-2 and Class LH-3 Uncertificated Interests, the Class H
Certificates, (x) the Class LJ-1, Class LJ-2 and Class LJ-3 Uncertificated
Interests, the Class J Certificates, (xi) the Class LK-1, Class LK-2 and Class
LK-3 Uncertificated Interests, the Class K Certificates, (xii) the Class LL-1
and Class LL-2 Uncertificated Interests, the Class L Certificates, (xiii) the
Class LM-1 and Class LM-2 Uncertificated Interests, the Class M Certificates and
(xiv) the Class LQ-1 and Class LQ-2 Uncertificated Interests, the Class Q
Certificates) as adjusted for the allocation of Collateral Support Deficits or
Houston Galleria Collateral Support Deficits, as applicable, as provided in
Sections 4.04(b) and 4.04(c) and of Certificate Deferred Interest as provided in
Section 4.06. The initial principal balance of each Uncertificated Lower-Tier
Interest equals the respective Original Lower-Tier Principal Amount. The
pass-through rate with respect to each Uncertificated Lower-Tier Interest will
be the rate per annum set forth in the Preliminary Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account on
each Distribution Date after distribution of the Lower-Tier Regular Distribution
Amount, the Lower-Tier HG Distribution Amount and distribution of Yield
Maintenance Charges pursuant to Section 4.01(d)(iii) shall be distributed to the
Holders of the Class LR Certificates (but only to the extent of the Available
Distribution Amount or Class HG Available Distribution Amount for such
Distribution Date remaining in the Lower-Tier Distribution Account, if any).
(c) Notwithstanding the priorities set forth in clause (a) above, on
and after the Distribution Date on which the Certificate Balances of the
Subordinate Certificates have all been reduced to zero, the Principal
Distribution Amount will be distributed, pro rata, among the Class A-1, Class
A-1A, Class A-2, Class A-3, Class A-4 and Class A-SB Certificates and the Class
A-2FL Regular Interest without regard to Loan Group, based on their respective
Certificate Balances immediately prior to such Distribution Date, in reduction
of their respective Certificate Balances, until the Certificate Balance of each
such Class is reduced to zero, and any amounts representing reimbursements of
Collateral Support Deficits previously allocated to such Classes, if available,
will be distributed pro rata based on their respective Certificate Balances,
without regard to Loan Group.
(d) On each Distribution Date, to the extent of the Class HG
Available Distribution Amount for such Distribution Date, the Trustee shall be
deemed to transfer the Lower-Tier HG Distribution Amount from the Lower-Tier
Distribution Account to the Upper-Tier Distribution Account in the amounts and
priorities set forth in Section 4.01(b) with respect to each Class of
Uncertificated Class HG Lower-Tier Interests, and immediately thereafter, shall
make distributions thereof from the Upper-Tier Distribution Account in the
following order of priority, satisfying in full, to the extent required and
possible, each priority before making any distribution with respect to any
succeeding priority:
(i) first, to the Holders of the Class HG-1 Certificates and the
Class HG-X Certificates, pro rata (based upon their respective
entitlements to interest for such Distribution Date), in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Classes of Certificates for such Distribution
Date;
(ii) second, to the Holders of the Class HG-1 Certificates, an
amount equal to the remaining Class HG Principal Distribution Amount,
until the Certificate Balance of such Class has been reduced to zero;
(iii) third, to the Holders of the Class HG-1 Certificates, in
reimbursement of any unreimbursed Houston Galleria Collateral Support
Deficit previously allocated to the Class HG-1 Certificates, until such
amounts have been reimbursed in full;
(iv) fourth, to the Holders of the Class HG-2 Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(v) fifth, following reduction of the Certificate Balance of the
Class HG-1 Certificates to zero, to the Holders of the Class HG-2
Certificates, in reduction of their Certificate Balance, an amount equal
to the Class HG Principal Distribution Amount (or the portion of it
remaining after distributions on the Class HG-1 Certificates on that
Distribution Date), until the Certificate Balance of that Class is reduced
to zero;
(vi) sixth, to the Holders of the Class HG-2 Certificates, in
reimbursement of any unreimbursed Houston Galleria Collateral Support
Deficit previously allocated to the Class HG-2 Certificates, until such
amounts have been reimbursed in full;
(vii) seventh, to the Holders of the Class HG-3 Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(viii) eighth, following reduction of the Certificate Balances of
the Class HG-1 and Class HG-2 Certificates to zero, to the Holders of the
Class HG-3 Certificates, in reduction of their Certificate Balance, an
amount equal to the Class HG Principal Distribution Amount (or the portion
of it remaining after distributions on the Class HG-1 Certificates and
Class HG-2 Certificates on that Distribution Date), until the Certificate
Balance of that Class is reduced to zero;
(ix) ninth, to the Holders of the Class HG-3 Certificates, in
reimbursement of any unreimbursed Houston Galleria Collateral Support
Deficit previously allocated to the Class HG-3 Certificates, until such
amounts have been reimbursed in full;
(x) tenth, to the Holders of the Class HG-4 Certificates, in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xi) eleventh, following reduction of the Certificate Balances of
the Class HG-1, Class HG-2 and Class HG-3 Certificates to zero, to the
Holders of the Class HG-4 Certificates, in reduction of their Certificate
Balance, an amount equal to the Class HG Principal Distribution Amount (or
the portion of it remaining after distributions on the Class HG-1
Certificates, Class HG-2 and Class HG-3 Certificates on that Distribution
Date), until the Certificate Balance of that Class is reduced to zero;
(xii) twelfth, to the Holders of the Class HG-4 Certificates, in
reimbursement of any unreimbursed Houston Galleria Collateral Support
Deficit previously allocated to the Class HG-4 Certificates, until such
amounts have been reimbursed in full;
(xiii) thirteenth, to the Holders of the Class HG-5 Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xiv) fourteenth, following reduction of the Certificate Balances of
the Class HG-1, Class HG-2, Class HG-3 and Class HG-4 Certificates to
zero, to the Holders of the Class HG-5 Certificates, in reduction of their
Certificate Balance, an amount equal to the Class HG Principal
Distribution Amount (or the portion of it remaining after distributions on
the Class HG-1 Certificates, Class HG-2, Class HG-3 and Class HG-4
Certificates on that Distribution Date), until the Certificate Balance of
that Class is reduced to zero;
(xv) fifteenth, to the Holders of the Class HG-5 Certificates, in
reimbursement of any unreimbursed Houston Galleria Collateral Support
Deficit previously allocated to the Class HG-4 Certificates, until such
amounts have been reimbursed in full; and
(xvi) sixteenth, to the Holders of the Class LR and the Class R
Certificates, the amount, if any, of the Class HG Available Distribution
Amount remaining in the Lower-Tier Distribution Account and the Upper-Tier
Distribution Account, respectively, with respect to such Distribution
Date.
(e) (i) On each Distribution Date, (subject to the provisions of the
penultimate paragraph of Section 3.04(b) with respect to the Class-A2FL Net Swap
Payment), Yield Maintenance Charges collected during the related Due Period will
be distributed by the Trustee to the following Classes: to the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class A-3
Certificates, Class A-4 Certificates, Class A-SB Certificates, Class A-1A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates with respect to the related Loan Group on
each Distribution Date, in an amount equal to the product of (a) a fraction
whose numerator is the amount distributed as principal to such Class on such
Distribution Date, and whose denominator is the total amount distributed as
principal to the Class A-1 Certificates, Class A-2FL Regular Interest, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates, Class A-SB
Certificates, Class A-1A Certificates, Class A-M Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates, Class K Certificates, Class L Certificates,
Class M Certificates, Class N Certificates, Class O Certificates, Class P
Certificates, Class Q Certificates and Class NR Certificates on such
Distribution Date, (b) the Base Interest Fraction for the related principal
payment on such Class of Certificates, and (c) the aggregate amount of Yield
Maintenance Charges collected on such principal prepayments during the related
Due Period. If more than one such Class of Certificates is entitled to
distributions of principal with respect to the related Loan Group on any
particular Distribution Date on which Yield Maintenance Charges are
distributable, the aggregate amount of such Yield Maintenance Charges will be
allocated among all such Classes up to, and on a pro rata basis in accordance
with, their respective entitlements thereto in accordance with this Section
4.01(d)(i). Any Yield Maintenance Charge collected during the related Due Period
remaining after such distributions will be distributed to the holders of the
Class X-1 Certificates.
(ii) No Yield Maintenance Charge will be distributed to the holders
of the Class L, Class M, Class N, Class O, Class P, Class Q, Class NR,
Class X-2, Class HG, Class S or Residual Certificates. After the
Certificate Balances of the Class A-1 Certificates, Class A-2FL Regular
Interest, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-SB Certificates, Class A-1A Certificates, Class A-M
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates have been reduced to zero, all Yield
Maintenance Charges with respect to the Mortgage Loans shall be
distributed to the holders of the Class X-1 Certificates.
(iii) All distributions of Yield Maintenance Charges made in respect
of the respective Classes of Regular Certificates and the Class A-2FL
Regular Interest on each Distribution Date (subject to the provisions of
the penultimate paragraph of Section 3.04(b) with respect to the Class
A-2FL Net Swap Payment) pursuant to Section 4.01(e)(i) shall first be
deemed to be distributed from the Lower-Tier REMIC to the Upper Tier REMIC
in respect of the Uncertificated Lower Tier Interests, pro rata based upon
the amount of principal distributed in respect of each such Class of
Uncertificated Lower-Tier Interests for such Distribution Date pursuant to
Section 4.01(b) above.
(iv) Any distributions of Yield Maintenance Charges in respect of
the Class A-2FL Regular Interest shall be paid to the Holders of the Class
A-2FL Certificates or to the Swap Counterparty as specified in Section
4.01(l).
(f) On each Distribution Date, the Trustee shall withdraw amounts
from the Gain-on-Sale Reserve Account and shall distribute such amounts to
reimburse the Holders of the Regular Certificates (in order of alphabetical
Class designation) (first deeming such amounts to be distributed with respect to
the Related Uncertificated Lower-Tier Interests and, in the case of the Class
A-2FL Certificates, the Class A-2FL Regular Interest) up to an amount equal to
all Collateral Support Deficits, if any, previously deemed allocated to them and
unreimbursed after application of the Available Distribution Amount for such
Distribution Date. Any amount in the Gain-on-Sale Reserve Account with respect
to the Houston Galleria Trust Subordinate Companion Loan shall be applied to the
Houston Galleria Collateral Support Deficits in respect of the Class HG
Certificates (in order of numerical Class designation), and any remaining amount
thereof shall be held in the Gain-on-Sale Reserve Account and applied as
described in the preceding sentence. Amounts paid from the Gain-on-Sale Reserve
Account will not reduce the Certificate Balances of the Classes of Certificates
or Class A-2FL Regular Interest receiving such distributions. Any amounts
remaining in the Gain-on-Sale Reserve Account after such distributions shall be
applied to offset future Collateral Support Deficits and related Collateral
Support Deficits and upon termination of the Trust Fund, any amounts remaining
in the Gain-on-Sale Reserve Account shall be distributed to the Class LR
Certificateholders.
(g) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise specifically provided in Sections 4.01(g),
4.01(h) and 9.01, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates), or otherwise by check mailed to such
Certificateholder at its address in the Certificate Registrar. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to such
Certificate) will be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Master Servicers, the Special Servicer
or the Underwriters shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law.
(h) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Trustee shall, no
later than the related P&I Advance Determination Date, mail to each Holder on
such date of such Class of Certificates a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the offices of the
Certificate Registrar or such other location therein specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g).
(i) Distributions in reimbursement of Collateral Support Deficit or
Houston Galleria Collateral Support Deficit previously allocated to the Regular
Certificates or Class HG Certificates shall be made in the amounts and manner
specified in Section 4.01(a) or Section 4.01(e), as applicable, to the Holders
of the respective Class otherwise entitled to distributions of interest and
principal on such Class on the relevant Distribution Date; provided that all
distributions in reimbursement of Collateral Support Deficit or Houston Galleria
Collateral Support Deficit previously allocated to a Class of Certificates which
has since been retired shall be to the prior Holders that surrendered the
Certificates of such Class upon retirement thereof and shall be made by check
mailed to the address of each such prior Holder last shown in the Certificate
Register. Notice of any such distribution to a prior Holder shall be made in
accordance with Section 11.05 at such last address. The amount of the
distribution to each such prior Holder shall be based upon the aggregate
Percentage Interest evidenced by the Certificates surrendered thereby. If the
check mailed to any such prior Holder is returned uncashed, then the amount
thereof shall be set aside and held uninvested in trust for the benefit of such
prior Holder, and the Trustee shall attempt to contact such prior Holder in the
manner contemplated by Section 4.01(g) as if such Holder had failed to surrender
its Certificates.
(j) On each Distribution Date, any Excess Interest received during
the related Due Period with respect to the Mortgage Loans shall be distributed
to the holders of the Class S Certificates from the Excess Interest Distribution
Account.
(k) On the date as specified in the related Intercreditor Agreement,
but in no event earlier than one Business Day following receipt, with respect to
the Companion Loans, the applicable Companion Paying Agent shall make
withdrawals and payments from the Companion Distribution Account for each
Companion Loan in the following order of priority:
(i) to pay the Trustee or 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, to the extent any such amounts
relate solely to the Loan Pair related to such Companion Loan, and such
amounts are to be paid by the related Companion Holder pursuant to the
related Intercreditor Agreement;
(ii) to pay to the applicable Master Servicer any amounts deposited
by such Master Servicer in the Companion Distribution Account not required
to be deposited therein;
(iii) to pay all amounts remaining in the Companion Distribution
Account related to such Companion Loan to the related Companion Holder, in
accordance with the related Intercreditor Agreement; and
(iv) to clear and terminate the Companion Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
All distributions from the Companion Distribution Account required
hereunder shall be made by the applicable Companion Paying Agent to the
Companion Holder by wire transfer in immediately available funds to the account
of such Companion Holder or an agent therefor appearing on the Companion
Register on the related Record Date (or, if no such account so appears or
information relating thereto is not provided at least five Business Days prior
to the related Record Date, by check sent by first class mail to the address of
such Companion Holder or its agent appearing on the Companion Register). Any
such account shall be located at a commercial bank in the United States.
(l) (i) On each Distribution Date, to the extent of the Class A-2FL
Available Funds for such Distribution Date, the Trustee shall make
distributions from the Floating Rate Account in the following order of
priority, satisfying in full, to the extent required and possible, each
priority before making any distribution with respect to any succeeding
priority:
(A) first, to the Holders of the Class A-2FL Certificates, in
respect of interest, up to an amount equal to the Class A-2FL
Interest Distribution Amount for such Distribution Date;
(B) second, to the Holders of the Class A-2FL Certificates, in
reduction of the Certificate Balances thereof, an amount equal to
the Class A-2FL Principal Distribution Amount, until the outstanding
Certificate Balance thereof has been reduced to zero;
(C) third, to the Holders of the Class A-2FL Certificates,
until all amounts of Collateral Support Deficit previously allocated
to the Class A-2FL Certificates (as a result of the allocation of
Collateral Support Deficit to the Class A-2FL Regular Interest) but
not previously reimbursed, has been reimbursed in full;
(D) fourth, to pay (1) any costs and expenses related to the
Swap Contract and (2) any termination payments to the Swap
Counterparty, in that order and solely to the extent provided
herein, including Section 4.01(k)(iii); and
(E) fifth, any remaining amount to the Holders of the Class
A-2FL Certificates.
(ii) So long as a Class A-2FL Distribution Conversion is not in
effect, any Yield Maintenance Charges paid on the Class A-2FL Regular
Interest shall be payable to the Swap Counterparty pursuant to the terms
of the Swap Contract on a net basis as part of the Class A-2FL Net Swap
Payment as specified in Section 3.32. On each Distribution Date for which
a Class A-2FL Distribution Conversion is in effect, any Yield Maintenance
Charges paid on the Class A-2FL Regular Interest shall be distributed to
the Holders of the Class A-2FL Certificates.
(iii) Any termination payments due to the Swap Counterparty under
the Swap Contract shall be payable solely from amounts, if any, remaining
in the Floating Rate Account after all other amounts have been paid under
the Class A-2FL Certificates (including all principal and interest amounts
outstanding and reimbursement of any Collateral Support Deficit).
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s; Grant of Power of Attorney. (a) On each Distribution
Date, the Trustee shall make available to the general public a statement
(substantially in the form set forth as Exhibit G hereto and based on the
information supplied to the Trustee in the related CMSA Investor Reporting
Package (IRP) in accordance with CMSA guidelines) as to the distributions made
on such Distribution Date (each, a "Statement to Certificateholders") which
shall include:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates allocable to Distributable
Certificate Interest and with respect to the Class A-2FL Certificates,
notification that the amount of interest distributed thereon is equal to
the Interest Distribution Amount with respect to the Class A-2FL Regular
Interest, which is being paid as a result of a Class A-2FL Distribution
Conversion;
(iii) the aggregate amount of Advances made, with respect to the
pool of Mortgage Loans and with respect to each Loan Group, during the
period from, but not including, the previous Distribution Date to, and
including, such Distribution Date and details of P&I Advances as of the
P&I Advance Date;
(iv) the aggregate amount of compensation paid to the Trustee and
servicing compensation paid to the Master Servicers and the Special
Servicer with respect to the Due Period for such Determination Date
together with detailed calculations of servicing compensation paid to the
Master Servicers and Special Servicer;
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Loans, with respect to the pool of Mortgage Loans and with respect
to each Loan Group, outstanding immediately before and immediately after
such Distribution Date;
(vi) the number of loans, their aggregate principal balance,
weighted average remaining term to maturity and weighted average Mortgage
Rate of the Mortgage Loans, with respect to the pool of Mortgage Loans and
with respect to each Loan Group, as of the end of the related Due Period
for such Distribution Date;
(vii) the number and aggregate principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
days or more, (D) current but specially serviced or in foreclosure but not
REO Property and (E) for which the related Mortgagor is subject to
oversight by a bankruptcy court;
(viii) the value of any REO Property included in the Trust Fund as
of the end of the related Determination Date for such Distribution Date,
based on the most recent Appraisal or valuation;
(ix) the Available Distribution Amount for such Distribution Date;
(x) the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, separately identifying any
Certificate Deferred Interest for such Distribution Date allocated to such
Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to (A) Yield Maintenance
Charges and (B) Excess Interest;
(xii) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount and the
Unscheduled Principal Distribution Amount for such Distribution Date, with
respect to the pool of Mortgage Loans and with respect to each Loan Group;
(xiv) the Certificate Balance or Notional Amount, as the case may
be, of each Class of Certificates immediately before and immediately after
such Distribution Date, separately identifying any reduction therein as a
result of the allocation of any Collateral Support Deficit or Houston
Galleria Collateral Support Deficit on such Distribution Date and the
aggregate amount of all reductions as a result of allocations of
Collateral Support Deficits to date;
(xv) the Certificate Factor for each Class of Regular Certificates
and Class HG Certificates immediately following such Distribution Date;
(xvi) the amount of any Appraisal Reductions effected in connection
with such Distribution Date on a loan-by-loan basis and the total
Appraisal Reduction effected in connection with such Distribution Date,
together with a detailed worksheet showing the calculation of each
Appraisal Reduction on a current and cumulative basis;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans extended or modified since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date) on
a loan-by-loan basis;
(xviii) the amount of any remaining Class Unpaid Interest Shortfall
for such Class as of such Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date)
and the amount and the type of Principal Prepayment occurring;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxi) all deposits into, withdrawals from, and the balance of the
Interest Reserve Account on the P&I Advance Date;
(xxii) in the case of the Residual Certificates, the amount of any
distributions on such Certificates pursuant to Sections 4.01(a), (b) and
(d);
(xxiii) the amount of the distribution on such Distribution Date to
the Holders of such Class of Certificates in reimbursement of previously
allocated Collateral Support Deficit or Houston Galleria Collateral
Support Deficit;
(xxiv) the aggregate unpaid principal balance of the Mortgage Loans
outstanding as of the close of business on the related Determination Date,
with respect to the pool of Mortgage Loans and with respect to each Loan
Group;
(xxv) with respect to any Mortgage Loan as to which a Liquidation
Event occurred since the previous Determination Date (or in the case of
the first Distribution Date, as of the Cut-off Date) or prior to the
related Determination Date (other than a payment in full), (A) the loan
number thereof, (B) the aggregate of all Liquidation Proceeds and other
amounts received in connection with such Liquidation Event (separately
identifying the portion thereof allocable to distributions on the
Certificates), and (C) the amount of any Collateral Support Deficit or
Houston Galleria Collateral Support Deficit in connection with such
Liquidation Event;
(xxvi) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related Due
Period or prior to the Determination Date, (A) the loan number of the
related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and
other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Collateral
Support Deficit in respect of the related REO Loan in connection with such
Final Recovery Determination;
(xxvii) the aggregate amount of interest on P&I Advances paid to
each Master Servicer and the Trustee since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date),
with respect to the pool of Mortgage Loans and with respect to each Loan
Group;
(xxviii) the aggregate amount of interest on Servicing Advances paid
to each Master Servicer and the Trustee since the previous Determination
Date (or in the case of the first Distribution Date, as of the Cut-off
Date);
(xxix) the original and then current credit support levels for each
Class of Certificates;
(xxx) the original and then current ratings for each Class of
Regular Certificates;
(xxxi) the amount of the distribution on the Distribution Date to
the Holders of the Residual Certificates;
(xxxii) the aggregate amount of Yield Maintenance Charges collected
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxxiii) the aggregate amount of interest on Servicing Advances
reimbursed to the Master Servicers and the Trustee since the previous
Determination Date (or in the case of the first Distribution Date, as of
the Cut-off Date);
(xxxiv) the original and then current credit support levels for each
Class of Certificates;
(xxxv) the original and then current ratings for each Class of
Regular Certificates;
(xxxvi) the amount of the distribution on the Distribution Date to
the Holders of the Residual Certificates;
(xxxvii) the aggregate amount of Yield Maintenance Charges collected
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxxviii) LIBOR as calculated for the related Distribution Date and
the next succeeding Distribution Date;
(xxxix) the amounts received and paid in respect of the Swap
Contract;
(xl) identification of any Rating Agency Trigger Event or Swap
Default as of the close of business on the last day of the immediately
preceding calendar month with respect to the Swap Contract;
(xli) the amount of any (A) payment by the Swap Counterparty as a
termination payment, (B) payments in connection with the acquisition of a
replacement interest rate swap contract, and (C) collateral posted in
connection with any Rating Agency Trigger Event;
(xlii) the amount of, and identification of, any payments on the
Class A-2FL Certificates in addition to the amount of principal and
interest due thereon (including without limitation, any termination
payment received in connection with the Swap Contract); and
(xliii) solely with respect to the Houston Galleria Whole Loan, such
other information as is necessary to comply with the terms of Regulation
AB.
In the case of information furnished pursuant to clauses (i), (ii),
(x), (xi), (xxxiv) and (xxxvii) above, the amounts shall be expressed as a
dollar amount in the aggregate for all Certificates of each applicable Class and
per Definitive Certificate.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate, a statement containing the
information set forth in clauses (i), (ii) and (xi) above as to the applicable
Class, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder, together with such other information
as the Trustee deems necessary or desirable, or that a Certificateholder or
Certificate Owner reasonably requests, to enable Certificateholders to prepare
their tax returns for such calendar year. Such obligation of the Trustee shall
be deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time are in force.
On each Distribution Date, the Trustee shall make available to the
general public via its website initially located at "xxx.xxxxxxxx.xxx" (i) the
related Statement to Certificateholders, (ii) the CMSA Loan Periodic Update
File, the CMSA Loan Setup File, the CMSA Bond Level File, the CMSA Collateral
Summary File, the CMSA Property File and (iii) as a convenience to the general
public (and not in furtherance of the distribution thereof under the securities
laws), the prospectus supplement, the prospectus, and this Agreement.
The Trustee shall make available the Statement to Certificateholders
through its home page on the Internet. The Trustee hereby acknowledges and
agrees that its home page as of the date hereof is located at "xxx.xxxxxxxx.xxx"
on the world wide web. In addition, if the Depositor so directs the Trustee, and
on terms acceptable to the Trustee, the Trustee shall make certain other
information and reports related to the Mortgage Loans available through its
internet website.
The Trustee shall make available to the Companion Holders all
reports via its Internet Website that the Trustee has made available to
Certificateholders under this Agreement.
In addition, on each Distribution Date, the Trustee shall make
available, to any Privileged Person via its website, each of the "surveillance
reports" identified as such in the definition of "CMSA Investor Reporting
Package", eight supplemental reports and the CMSA Operating Statement Analysis
Report and CMSA NOI Adjusted Worksheets and seven CMSA data files, the Realized
Loss Report and the CMSA Advance Recovery Report to the extent delivered by the
Master Servicer pursuant to this Agreement and the Trustee's Exception Report as
updated from time to time to the extent delivered to the Trustee.
The Trustee makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on its Internet website and assumes no responsibility therefor. In
addition, the Trustee may disclaim responsibility for any information
distributed by it for which it is not the original source.
In connection with providing access to the Trustee's Internet
website, the Trustee may require registration and the acceptance of a
disclaimer. The Trustee shall not be liable for the dissemination of information
in accordance herewith. Questions regarding the Trustee's Internet website can
be directed to the Trustee's CMBS customer service desk at (000) 000-0000.
Each Master Servicer may, at its sole cost and expense, make
available by electronic media, bulletin board service or Internet website (in
addition to making information available as provided herein) any reports or
other information such Master Servicer is required or permitted to provide to
any party to this Agreement, the Rating Agencies or any Certificateholder or
prospective Certificateholder to the extent such action does not conflict with
the terms of this Agreement, the terms of the Mortgage Loans or applicable law.
In connection with providing access to the such Master Servicer's Internet
website, such Master Servicer shall take reasonable measures to ensure that only
such parties listed above may access such information including, without
limitation, requiring registration, a confidentiality agreement and acceptance
of a disclaimer. Each Master Servicer shall not be liable for dissemination of
this information in accordance with this Agreement, provided that such
information otherwise meets the requirements set forth herein with respect to
the form and substance of such information or reports. Each Master Servicer
shall be entitled to attach to any report provided pursuant to this subsection,
any reasonable disclaimer with respect to information provided, or any
assumptions required to be made by such report. Notwithstanding anything herein
to the contrary, each Master Servicer may, at its sole cost and expense, make
available by electronic media, bulletin board service or Internet website (with
respect to Master Servicer No. 1: xxx.xxxxxxxxx.xxx) any reports or other
information such Master Servicer is required or permitted to provide to any
Mortgagor with respect to such Mortgagor's Mortgage Loan to the extent such
action does not conflict with the terms of this Agreement, the terms of the
Mortgage Loans or applicable law.
(b) The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the applicable Master Servicer) provide the
applicable Master Servicer with such information in its possession regarding the
Specially Serviced Mortgage Loans and REO Properties as may be necessary for
such Master Servicer to prepare each report and any supplemental information to
be provided by such Master Servicer to the Trustee. Neither the Trustee nor the
Depositor shall have any obligation to recompute, verify or recalculate the
information provided thereto by such Master Servicer. Unless the Trustee has
actual knowledge that any report or file received from the applicable Master
Servicer contains erroneous information, the Trustee is authorized to rely
thereon in calculating and making distributions to Certificateholders in
accordance with Section 4.01, preparing the statements to Certificateholders
required by Section 4.02(a) and allocating Collateral Support Deficit to the
Certificates in accordance with Section 4.04.
Notwithstanding the foregoing, the failure of any Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent such Master
Servicer or the Special Servicer so fails because such disclosure, in the
reasonable belief of such Master Servicer or the Special Servicer, as the case
may be, would violate any applicable law or any provision of a Mortgage Loan
document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties. Each Master Servicer or the Special Servicer
may affix to any information provided by it any disclaimer it deems appropriate
in its reasonable discretion (without suggesting liability on the part of any
other party hereto).
(c) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Trustee shall provide the
requesting Certificateholder with such information that is in the Trustee's
possession or can reasonably be obtained by the Trustee as is requested by such
Certificateholder, for purposes of satisfying applicable reporting requirements
under Rule 144A under the Securities Act. Neither the Certificate Registrar nor
the Trustee shall have any responsibility for the sufficiency under Rule 144A or
any other securities laws of any available information so furnished to any
person including any prospective purchaser of a Certificate or any interest
therein, nor for the content or accuracy of any information so furnished which
was prepared or delivered to them by another.
(d) The information to which any Certificateholder is entitled is
limited to the information gathered and provided to the Certificateholder by the
parties hereto pursuant to this Agreement and by acceptance of any Certificate,
each Certificateholder agrees that except as specifically provided herein, no
Certificateholder shall contact any Mortgagor directly with respect to any
Mortgage Loan.
(e) (i) The Trustee, the Master Servicers and the Special Servicer
shall reasonably cooperate with the Depositor in connection with the Trust's
satisfying the reporting requirements under the Exchange Act. The Trustee shall
prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar
securities as required by the Exchange Act and the Rules and Regulations of the
Commission thereunder, and the Trustee shall file (via the Commission's
Electronic Data Gathering and Retrieval System) such forms on behalf of the
Depositor. The Trustee shall deliver a draft of each such form to be filed to
the Depositor for its review and execution no later than 5 Business Days prior
to the filing deadline applicable to each such report and the Depositor shall
deliver each such executed form to the Trustee no later than 2 Business Days
prior to the filing deadline applicable to each such report. Alternatively, the
Depositor may deliver to the Trustee manually signed copies of a power of
attorney meeting the requirements of Item 601(b)(24) of Regulation S-K under the
Securities Act, and certified copies of a resolution of the Depositor's board of
directors authorizing such power of attorney, each to be filed with each Form
8-K, in which case the Trustee shall sign such Forms 8-K on behalf of the
Depositor. In the event that the Trustee signs the Forms 8-K on behalf of the
Depositor pursuant to such powers of attorney, the Trustee shall deliver a draft
of each such Form 8-K to the Depositor no later than 2 Business Days prior to
the filing deadline applicable to such report.
(ii) Each Form 8-K shall be filed by the Trustee within 15 days
after each Distribution Date, including a copy of the Statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior
to March 30th of each year (or such earlier date as may be required by the
Exchange Act and the Rules and Regulations of the Commission), the Trustee
shall file a Form 10-K, in substance as required by applicable law or
applicable Commission staff's interpretations. Such Form 10-K shall
include as exhibits each Master Servicer's and the Special Servicer's
annual statement of compliance described under Section 3.13 and the
accountant's report described under Section 3.14. If they are not timely
delivered, the Trustee shall file an amended Form 10-K including such
documents as exhibits reasonably promptly after they are delivered to the
Trustee. The Trustee shall have no liability with respect to any failure
to properly prepare or file such periodic reports resulting from or
relating to the Trustee's inability or failure to obtain any information
not resulting from its own negligence, willful misconduct or bad faith.
The Form 10-K shall also include a certification in the form attached
hereto as Exhibit Q (the "Certification") (or in such other form as
required by the Rules and Regulations of the Commission), which shall be
signed by the senior officer of the Depositor in charge of securitization.
(iii) The Trustee shall sign a certification (in the form attached
hereto as Exhibit S-1 or in such other form as may be appropriate or
necessary and as may be agreed upon by the Trustee and Depositor as a
result of changes promulgated by the Commission in the Certification
required to be filed with the Form 10-K, which are applicable to the
Trust) for the benefit of the Depositor and its officers, directors and
Affiliates (provided, however, that the Trustee shall not undertake an
analysis of the accountant's report attached as an exhibit to the Form
10-K), each Master Servicer shall sign a certification (in the form
attached hereto as Exhibit S-2 or in such other form as may be appropriate
or necessary and as may be agreed upon by such Master Servicer and
Depositor as a result of changes promulgated by the Commission in the
Certification required to be filed with the Form 10-K, which are
applicable to the Trust) and the Special Servicer shall sign a
certification (in the form attached hereto as Exhibit S-3 or in such other
form as may be appropriate or necessary and as may be agreed upon by the
Special Servicer and Depositor as a result of changes promulgated by the
Commission in the Certification required to be filed with the Form 10-K,
which are applicable to the Trust), in each case, for the benefit of the
Depositor, the Trustee and their officers, directors and Affiliates by
March 15th of each year beginning in 2006 (or if not a Business Day, the
immediately preceding Business Day). The Certification attached hereto as
Exhibit Q shall be delivered by the Depositor to the Trustee for filing by
March 20th of each year beginning in 2006 (or if not a Business Day, the
immediately preceding Business Day). In addition, (i) the Trustee shall
indemnify and hold harmless the Depositor and its officers, directors and
Affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a
breach of the Trustee's obligations under this Section 4.02(e) or the
Trustee's negligence, bad faith or willful misconduct in connection
therewith, and (ii) each Master Servicer and Special Servicer shall each
severally and not jointly indemnify and hold harmless the Depositor, the
Trustee and their respective officers, directors and Affiliates from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and
expenses arising out of or based upon a breach of such Master Servicer's
or Special Servicer's obligations of such Master Servicer or the Special
Servicer, as the case may be, under this Section 4.02(e) or the
negligence, bad faith or willful misconduct of such Master Servicer or the
Special Servicer, as the case may be, in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, then (i) the Trustee agrees that it shall
contribute to the amount paid or payable to the Depositor as a result of
the losses, claims, damages or liabilities of the Depositor in such
proportion as is appropriate to reflect the relative fault of the
Depositor on the one hand and the Trustee on the other in connection with
a breach of the Trustee's obligations under this Section 4.02(e) or the
Trustee's negligence, bad faith or willful misconduct in connection
therewith, (ii) each Master Servicer agrees that it shall contribute to
the amount paid or payable by the Depositor as a result of the losses,
claims, damages or liabilities of the Depositor in such proportion as is
appropriate to reflect the relative fault of the Depositor on the one hand
and such Master Servicer on the other in connection with a breach of such
Master Servicer's obligations under this Section 4.02(e) or such Master
Servicer's negligence, bad faith or willful misconduct in connection
therewith and (iii) the Special Servicer agrees that it shall contribute
to the amount paid or payable by the Depositor as a result of the losses,
claims, damages or liabilities of the Depositor in such proportion as is
appropriate to reflect the relative fault of the Depositor on the one hand
and the Special Servicer on the other in connection with a breach of the
Special Servicer's obligations under this Section 4.02(e) or the Special
Servicer's negligence, bad faith or willful misconduct in connection
therewith.
(iv) Upon any filing with the Commission, the Trustee shall promptly
deliver to the Depositor a copy of any such executed report, statement or
information, along with evidence of such filing via the Commission's
Electronic Data Gathering and Retrieval System, and shall provide notice
of such filing to the Master Servicers and Special Servicer.
(v) Prior to January 30 of the first year in which the Trustee is
able to do so under applicable law, the Trustee shall file a Form 15
Suspension Notification with respect to the Trust after which time no Form
8-K or Form 10-K will be filed unless otherwise required by the Exchange
Act. The Trustee shall provide prompt written notice to the Depositor of
the filing of such Form 15 and a copy thereof.
Section 4.03 P&I Advances. (a) On or before 4:00 p.m., New York City
time, on each P&I Advance Date, the applicable Master Servicer shall either (i)
remit to the Trustee for deposit into the Lower-Tier Distribution Account from
its own funds an amount equal to the aggregate amount of P&I Advances, if any,
to be made in respect of the related Distribution Date, (ii) apply amounts held
in its Certificate Account, for future distribution to Certificateholders in
subsequent months in discharge of any such obligation to make P&I Advances or
(iii) make P&I Advances in the form of any combination of (i) and (ii)
aggregating the total amount of P&I Advances to be made. Any amounts held in the
applicable Certificate Account for future distribution and so used to make P&I
Advances shall be appropriately reflected in the applicable Master Servicer's
records and replaced by such Master Servicer by deposit in the Certificate
Account on or before the next succeeding P&I Advance Date (to the extent not
previously replaced through the deposit of Late Collections of the delinquent
principal and/or interest in respect of which such P&I Advances were made). Each
Master Servicer shall notify the Trustee of (i) the aggregate amount of P&I
Advances for a Distribution Date and (ii) the amount of any Nonrecoverable P&I
Advances for such Distribution Date, on or before 2 Business Days prior to such
Distribution Date. If any Master Servicer fails to make a required P&I Advance
by 4:00 p.m., New York City time, on any P&I Advance Date, the Trustee shall
make such P&I Advance pursuant to Section 7.05 by noon, New York City time, on
the related Distribution Date, in each case unless such Master Servicer shall
have cured such failure (and provided written notice of such cure to the
Trustee) by 11:00 a.m. on such Distribution Date.
(b) Subject to Sections 4.03(c) and (e) below, the amount of P&I
Advances to be made by any Master Servicer with respect to any Distribution Date
and each Mortgage Loan that it is responsible for servicing hereunder shall be
equal to: (i) all Monthly Payments (or in the case of the Houston Galleria Trust
Subordinate Companion Loan, only the interest portion of the Monthly Payment due
on the Houston Galleria Trust Subordinate Companion Loan (net of related
Servicing Fees) other than Balloon Payments, that were due during the related
Due Period and delinquent as of the close of business on the Business Day
preceding the related P&I Advance Date and (ii) with respect to each Mortgage
Loan as to which the related Balloon Payment was due during or prior to the
related Due Period and was delinquent as of the end of the related Due Period
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the Assumed Scheduled Payment (or, with respect to the
Houston Galleria Trust Subordinate Companion Loan, only the interest portion of
the Assumed Scheduled Payment for the Houston Galleria Trust Subordinate
Companion Loan) therefor. Subject to subsection (c) below, the obligation of
each Master Servicer to make such P&I Advances is mandatory, and with respect to
any Mortgage Loan or REO Loan, shall continue until the Distribution Date on
which the proceeds, if any, received in connection with a Liquidation Event or
the disposition of the REO Property, as the case may be, with respect thereto
are to be distributed. No P&I Advances shall be made with respect to a Companion
Loan.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. With respect to each Pari Passu Loan,
the Master Servicer No. 1 will be required to make its determination that it has
made a P&I Advance on such Pari Passu Loan that is a Nonrecoverable Advance or
that any proposed P&I Advance would, if made, constitute a Nonrecoverable
Advance with respect to such Pari Passu Loan independently of any determination
made by any Other Servicer under the related Other Pooling and Servicing
Agreement in respect of the related Serviced Pari Passu Companion Loan
(following its deposit into a securitization trust created under the related
Other Pooling and Servicing Agreement), and the Other Servicer shall make its
own determination that it has made a P&I Advance that is a Nonrecoverable
Advance (as defined in such Other Pooling and Servicing Agreement) or that any
proposed P&I Advance, if made, would constitute a Nonrecoverable Advance (as
defined in such Other Pooling and Servicing Agreement) with respect to the
Serviced Pari Passu Companion Loan in accordance with the Other Pooling and
Servicing Agreement. If the Master Servicer No. 1 or Special Servicer determines
that a proposed P&I Advance with respect to a Pari Passu Loan, if made, or any
outstanding P&I Advance with respect to a Pari Passu Loan previously made, would
be, or is, as applicable, a Nonrecoverable Advance, Master Servicer No. 1 shall
provide the related Other Servicer written notice of such determination within
one Business Day of the date of such determination. If Master Servicer No. 1
receives written notice from an Other Servicer that it has determined, by making
a determination of non-recoverability under the Other Pooling and Servicing
Agreement, with respect to the related Serviced Pari Passu Companion Loan that
any proposed advance under such Other Pooling and Servicing Agreement that is
similar to a P&I Advance would be, or any outstanding advance under such Other
Pooling and Servicing Agreement that is similar to a P&I Advance is, a
nonrecoverable advance, then such determination shall be binding on the
Certificateholders and none of Master Servicer No. 1 or the Trustee shall make
any additional P&I Advances with respect to the related Pari Passu Loan unless
the applicable Master Servicer has consulted with the Other Servicer and they
agree that circumstances with respect to such Loan Pair have changed such that a
proposed future P&I Advance or an advance under the Other Pooling and Servicing
Agreement that is similar to a P&I Advance would not be a Nonrecoverable Advance
or a nonrecoverable advance, as the case may be. Notwithstanding the foregoing,
the applicable Master Servicer or the Trustee shall continue to have the
discretion provided in this Agreement to determine that any future P&I Advance
or outstanding P&I Advance would be, or is, as applicable, a Nonrecoverable
Advance.
(d) In connection with the recovery of any P&I Advance out of the
applicable Certificate Account, pursuant to Section 3.05(a), the applicable
Master Servicer shall be entitled to pay the Trustee and itself or the other
Master Servicer (if amounts in such other Master Servicer's Certificate Account
are not sufficient for such reimbursement) (in that order of priority) as the
case may be out of any amounts then on deposit in such Certificate Account,
interest at the Reimbursement Rate in effect from time to time, accrued on the
amount of such P&I Advance from the date made to but not including the date of
reimbursement; provided, however, that no interest will accrue on any P&I
Advance (i) made with respect to a Mortgage Loan until after the related Due
Date has passed and any applicable grace period has expired or (ii) if the
related Monthly Payment is received after the Determination Date but on or prior
to the related P&I Advance Date. Each Master Servicer shall reimburse itself,
the Trustee or the other Master Servicer (if amounts in such other Master
Servicer's Certificate Account are not sufficient for such reimbursement), as
the case may be, for any outstanding P&I Advance, subject to Section 3.19 of
this Agreement, as soon as practicably possible after funds available for such
purpose are deposited in its Certificate Account.
(e) Notwithstanding the foregoing, (i) none of the Master Servicers
or the Trustee shall make an advance for Excess Interest, Yield Maintenance
Charges, Default Interest or Penalty Charges and (ii) if an Appraisal Reduction
has been made with respect to any Mortgage Loan then in the event of subsequent
delinquencies thereon, the interest portion of the P&I Advance in respect of
such Mortgage Loan for the related Distribution Date shall be reduced (it being
herein acknowledged that there shall be no reduction in the principal portion of
such P&I Advance) to equal the product of (x) the amount of the interest portion
of such P&I Advance for such Mortgage Loan for such Distribution Date without
regard to this subsection (ii), and (y) a fraction, expressed as a percentage,
the numerator of which is equal to the Stated Principal Balance of such Mortgage
Loan immediately prior to such Distribution Date, net of the related Appraisal
Reduction, if any, and the denominator of which is equal to the Stated Principal
Balance of such Mortgage Loan immediately prior to such Distribution Date. For
purposes of the immediately preceding sentence, the Monthly Payment due on the
Maturity Date for a Balloon Mortgage Loan will be the Assumed Scheduled Payment
for the related Distribution Date.
(f) In no event shall either the Master Servicers or the Trustee be
required to make a P&I Advance with respect to any Companion Loan.
(g) None of the Master Servicers or the Trustee shall advance any
amount due to be paid by the Swap Counterparty for distribution to the Class
A-2FL Certificates.
Section 4.04 Allocation of Collateral Support Deficit. (a) On each
Distribution Date, immediately following the distributions to be made on such
date pursuant to Section 4.01 and the allocation of Certificate Deferred
Interest pursuant to Section 4.06, the Trustee shall calculate the amount, if
any, by which (i) the aggregate Stated Principal Balance (for purposes of this
calculation only, not giving effect to any reductions of the Stated Principal
Balance for payments of principal collected on the Mortgage Loans that were used
to reimburse any Workout-Delayed Reimbursement Amounts pursuant to Section
3.05(a)(v) to the extent such Workout-Delayed Reimbursement Amounts are not
otherwise determined to be Nonrecoverable Advances) of the Mortgage Loans (other
than the Houston Galleria Trust Subordinate Companion Loan), and any REO Loans
(other than an REO Loan related to the Houston Galleria Trust Subordinate
Companion Loan) of the Mortgage Loans and any REO Loans expected to be
outstanding immediately following such Distribution Date, is less than (ii) the
then aggregate Certificate Balance of the Regular Certificates (other than the
Class A-2FL Certificates) and the Class A-2FL Regular Interest after giving
effect to distributions of principal on such Distribution Date and the
allocation of Certificate Deferred Interest pursuant to Section 4.06 (any such
deficit, the "Collateral Support Deficit"). Any allocation of Collateral Support
Deficit to a Class of Regular Certificates (other than the Class A-2FL
Certificates) and the Class A-2FL Regular Interest shall be made by reducing the
Certificate Balance thereof by the amount so allocated. Any Collateral Support
Deficit allocated to the Class A-2FL Regular Interest shall result in a
corresponding reduction of the Certificate Balance of the Class A-2FL
Certificates. Any Collateral Support Deficit allocated to a Class of Regular
Certificates (or, in the case of the Class A-2FL Certificates, an amount
corresponding to any Collateral Support Deficit allocated to the Class A-2FL
Regular Interest) shall be allocated among the respective Certificates of such
Class in proportion to the Percentage Interests evidenced thereby. The
allocation of Collateral Support Deficit shall constitute an allocation of
losses and other shortfalls experienced by the Trust Fund. Reimbursement of
previously allocated Collateral Support Deficit will not constitute
distributions of principal for any purpose and will not result in an additional
reduction in the Certificate Balance of the Class of Certificates (or, in the
case of the Class A-2FL Certificates, an amount corresponding to any Collateral
Support Deficit allocated to the Class A-2FL Regular Interest) in respect of
which any such reimbursement is made. To the extent any Nonrecoverable Advances
(plus interest thereon) that were reimbursed from principal collections on the
Mortgage Loans and previously resulted in a reduction of the Principal
Distribution Amount, Loan Group 1 Principal Distribution Amount or Loan Group 2
Principal Distribution Amount are subsequently recovered on the related Mortgage
Loan, the amount of such recovery will be added to the Certificate Balance of
the Class or Classes of Certificates that previously were allocated Collateral
Support Deficit, in sequential order, in each case up to the amount of the
unreimbursed Collateral Support Deficit allocated to such Class of Certificates
or Class A-2FL Regular Interest. If the Certificate Balance of any Class of
Certificates or Class A-2FL Regular Interest is so increased, the amount of
unreimbursed Collateral Support Deficit of such Class of Certificates or Class
A-2FL Regular Interest shall be decreased by such amount.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates and the Class A-2FL Regular Interest will be reduced
without distribution, as a write-off to the extent of any Collateral Support
Deficit, if any, allocable to such Certificates or Class A-2FL Regular Interest,
as applicable, with respect to such Distribution Date. Any such write-off shall
be allocated first to the Class NR Certificates; second to the Class Q
Certificates, third to the Class P Certificates, fourth to the Class O
Certificates; fifth to the Class N Certificates; sixth to the Class M
Certificates; seventh to the Class L Certificates; eighth to the Class K
Certificates; ninth to the Class J Certificates; tenth to the Class H
Certificates; eleventh to the Class G Certificates; twelfth to the Class F
Certificates; thirteenth to the Class E Certificates; fourteenth to the Class D
Certificates; fifteenth to the Class C Certificates; sixteenth to the Class B
Certificates; seventeenth to the Class A-J Certificates; eighteenth to the Class
A-M Certificates; and nineteenth to the Class A-1 Certificates, Class A-2FL
Regular Interest (and correspondingly to the Class A-2FL Certificates), Class
A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates, the Class A-SB
Certificates and the Class A-1A Certificates, pro rata (based upon their
respective Certificate Balances), until the remaining Certificate Balances of
such Classes have been reduced to zero.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates or Class A-2FL Regular Interest
pursuant to Section 4.04(b) with respect to such Distribution Date shall reduce
the Lower-Tier Principal Amount of the Related Uncertificated Lower-Tier
Interest with respect thereto as a write-off (in the case of (i) the Class A-1
Certificates, first, to the Class LA-1-1 Uncertificated Interest, second, to the
Class LA-1-2 Uncertificated Interest, third, to the Class LA-1-3 Uncertificated
Interest, fourth, to the Class LA-1-4 Uncertificated Interest, and fifth, to the
Class LA-1-5 Uncertificated Interest, in each case, until reduced to zero, (ii)
the Class A-1A Certificates, first, to the Class LA-1A-1 Uncertificated
Interest, second, to the Class LA-1A-2 Uncertificated Interest, third, to the
Class LA-1A-3 Uncertificated Interest, fourth, to the Class LA-1A-4
Uncertificated Interest, fifth, to the Class LA-1A-5 Uncertificated Interest,
sixth, to the Class LA-1A-6 Uncertificated Interest, seventh, to the Class
LA-1A-7 Uncertificated Interest, eighth, to the Class LA-1A-8 Uncertificated
Interest, ninth, to the Class LA-1A-9 Uncertificated Interest, tenth, to the
Class LA-1A-10 Uncertificated Interest, eleventh, to the Class LA-1A-11
Uncertificated Interest, twelfth, to the Class LA-1A-12 Uncertificated Interest,
thirteenth, to the Class LA-1A-13 Uncertificated Interest, fourteenth, to the
Class LA-1A-14 Uncertificated Interest, and fifteenth, to the Class LA-1A-15
Uncertificated Interest, in each case, until reduced to zero, (iii) the Class
A-2FL Regular Interest, first, to the Class LA-2FL-1 Uncertificated Interest,
second, to the Class LA-2FL-2 Uncertificated Interest, and third, to the Class
LA-2FL-3 Uncertificated Interest, in each case, until reduced to zero, (iv) the
Class A-2 Certificates, first, to the Class LA-2-1 Uncertificated Interest, and
second, to the Class LA-2-2 Uncertificated Interest, in each case, until reduced
to zero, (v) the Class A-3 Certificates, first, to the Class LA-3-1
Uncertificated Interest, and second, to the Class LA-3-2 Uncertificated
Interest, in each case, until reduced to zero, (vi) the Class A-4 Certificates,
first, to the Class LA-4-1 Uncertificated Interest, second, to the Class LA-4-2
Uncertificated Interest, third, to the Class LA-4-3 Uncertificated Interest,
fourth, to the Class LA-4-4 Uncertificated Interest, fifth, to the Class LA-4-5
Uncertificated Interest, sixth, to the Class LA-4-6 Uncertificated Interest and
seventh, to the Class LA-4-7 Uncertificated Interest, in each case, until
reduced to zero, (vii) the Class A-SB Certificates, first, to the Class LA-SB-1
Uncertificated Interest, second, to the Class LA-SB-2 Uncertificated Interest,
third, to the Class LA-SB-3 Uncertificated Interest, fourth, to the Class
LA-SB-4 Uncertificated Interest, fifth, to the Class LA-SB-5 Uncertificated
Interest, and sixth, to the Class LA-SB-6 Uncertificated Interest, in each case,
until reduced to zero, (viii) the Class G Certificates, first, to the Class LG-1
Uncertificated Interest, second, to the Class LG-2 Uncertificated Interest, and
third, to the Class LG-3 Uncertificated Interest, in each case, until reduced to
zero, (ix) the Class H Certificates, first, to the Class LH-1 Uncertificated
Interest, second, to the Class LH-2 Uncertificated Interest, and third, to the
Class LH-3 Uncertificated Interest, in each case, until reduced to zero, (x) the
Class J Certificates, first, to the Class LJ-1 Uncertificated Interest, second,
to the Class LJ-2 Uncertificated Interest, and third, to the Class LJ-3
Uncertificated Interest, in each case, until reduced to zero, (xi) the Class K
Certificates, first, to the Class LK-1 Uncertificated Interest, second, to the
Class LK-2 Uncertificated Interest and third, to the Class LK-3 Uncertificated
Interest, in each case, until reduced to zero, (xii) the Class L Certificates,
first, to the Class LL-1 Uncertificated Interest, and second, to the Class LL-2
Uncertificated Interest, in each case until reduced to zero, (xiii) the Class M
Certificates, first to the Class LM-1 Uncertificated Interest, and second, to
the Class LM-2 Uncertificated Interest, in each case until reduced to zero, and
(xiv) the Class Q Certificates, first to the Class LQ-1 Uncertificated Interest,
and second, to the Class LQ-2 Uncertificated Interest, in each case until
reduced to zero.
(d) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to Section 4.01 and the
allocation of Certificate Deferred Interest pursuant to Section 4.06, the
Trustee shall calculate the amount, if any, by which (i) the Stated Principal
Balance of the Houston Galleria Trust Subordinate Companion Loan and any related
REO Loan expected to be outstanding immediately following such Distribution
Date, is less than (ii) the then aggregate Certificate Balance of the Class HG
Certificates after giving effect to distributions of principal on such
Distribution Date and the allocation of Certificate Deferred Interest pursuant
to Section 4.05 (any such deficit, the "Houston Galleria Collateral Support
Deficit"). Any allocation of Houston Galleria Collateral Support Deficit to a
Class of Class HG Certificates shall be made by reducing the Certificate Balance
thereof by the amount so allocated pursuant to Section 4.04(e). Any Houston
Galleria Collateral Support Deficit allocated to a Class of Class HG
Certificates shall be allocated among the respective Certificates of such Class
in proportion to the Percentage Interests evidenced thereby. The allocation of
Houston Galleria Collateral Support Deficit shall constitute an allocation of
losses and other shortfalls experienced by the Trust Fund with respect to the
Houston Galleria Trust Subordinate Companion Loan. Reimbursement of previously
allocated Houston Galleria Collateral Support Deficit will not constitute
distributions of principal for any purpose and will not result in an additional
reduction in the Certificate Balance of the Class of Certificates in respect of
which any such reimbursement is made.
(e) On each Distribution Date, the Certificate Balances of the Class
HG Certificates will be reduced without distribution as a write-off to the
extent of any Houston Galleria Collateral Support Deficit, if any, allocable to
such Certificates with respect to such Distribution Date. Any such write-off
shall be allocated among the respective Certificates as follows: first, to the
Class HG-5 Certificates; second, to the Class HG-4 Certificates; third, to the
Class HG-3 Certificates; fourth, to the Class HG-2 Certificates, and fifth, to
the Class HG-1 Certificates, in each case until the remaining Certificate
Balances of such Classes of Certificates have been reduced to zero.
(f) With respect to any Distribution Date, any Houston Galleria
Collateral Support Deficit allocated to a Class of Class HG Certificates
pursuant to Section 4.04(e) with respect to such Distribution Date shall reduce
each of the Lower Tier Principal Amount of the Related Uncertificated Lower Tier
Interest with respect thereto as a write off.
Section 4.05 Appraisal Reductions. The aggregate Appraisal Reduction
will be allocated by the Trustee on each Distribution Date, only for purposes of
determining the amount of P&I Advances with respect to the related Mortgage
Loan, to the Certificate Balance of the Class NR, Class Q, Class P, Class O,
Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E,
Class D, Class C and Class B Certificates and the Class A-J Certificates and
then the Class A-M Certificates, in that order, up to the amount of their
respective Certificate Balances. On any Distribution Date, an Appraisal
Reduction that otherwise would be allocated to a Class of Certificates will be
allocated to the next most subordinate Class to the extent that the Certificate
Balance on such Distribution Date for such Class of Certificates (prior to
taking the Appraisal Reduction into account) is less than the Appraisal
Reduction for such Distribution Date.
With respect to any AB Mortgage Loan, Appraisal Reductions will be
calculated based on the aggregate outstanding principal balance of such AB
Mortgage Loan and the related Companion Loan. Any resulting Appraisal Reductions
will be allocated to the related Companion Loan up to the principal amount of
such Companion Loan prior to being allocated to the AB Mortgage Loan. With
respect to the Houston Galleria Whole Loan, Appraisal Reductions will be
calculated based on the aggregate outstanding principal balance of the Houston
Galleria Loan, the Houston Galleria Pari Passu Companion Loans and the Houston
Galleria Subordinate Companion Loans. Any resulting Appraisal Reduction on the
Houston Galleria Whole Loan will be applied, first, to the Houston Galleria
Trust Subordinate Companion Loan up to the principal amount of such Mortgage
Loan, second, to the Houston Galleria Non-Trust Subordinate Companion Loan up to
the principal amount of such Companion Loan, and then to the Houston Galleria
Loan and the Houston Galleria Pari Passu Companion Loan, pro rata and pari
passu, according to their respective principal balances.
Section 4.06 Certificate Deferred Interest. (a) On each Distribution
Date, the amount of interest distributable to a Class of Certificates (other
than the Class A-2FL Certificates, the Class X Certificates and the Residual
Certificates) and the Class A-2FL Regular Interest shall be reduced by an amount
equal to the amount of Mortgage Deferred Interest for all Mortgage Loans for the
Due Dates occurring in the related Due Period allocated to such Class of
Certificates or Class A-2FL Regular Interest, as applicable, such Mortgage
Deferred Interest to be allocated first, to the Class NR Certificates; second,
to the Class Q Certificates, third, to the Class P Certificates, fourth, to the
Class O Certificates; fifth, to the Class N Certificates; sixth, to the Class M
Certificates; seventh, to the Class L Certificates; eighth, to the Class K
Certificates; ninth, to the Class J Certificates; tenth, to the Class H
Certificates; eleventh, to the Class G Certificates, twelfth, to the Class F
Certificates, thirteenth, to the Class E Certificates, fourteenth, to the Class
D Certificates, fifteenth, to the Class C Certificates, sixteenth, to the Class
B Certificates, seventeenth, to the Class A-J Certificates, eighteenth, to the
Class A-M Certificates and nineteenth, pro rata (based upon Accrued Certificate
Interest) to the Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4 and
Class A-SB Certificates and the Class A-2FL Regular Interest (and
correspondingly the Class A-2FL Certificates) in each case up to the respective
Accrued Certificate Interest for each such Class for such Distribution Date.
Certificate Deferred Interest allocated to the Class A-2FL Regular Interest
will, by virtue of such allocation, be allocated to the Class A-2FL
Certificates. On each Distribution Date, the amount of interest distributable to
the Class HG Certificates shall be reduced by an amount equal to the amount of
Mortgage Deferred Interest for the Houston Galleria Trust Subordinate Companion
Loan for the Due Date occurring in the related Due Period, such Mortgage
Deferred Interest to be allocated, first, to the Class HG-5 Certificates,
second, to the Class HG-4 Certificates, third, to the Class HG-3 Certificates,
fourth, to the Class HG-2 Certificates and fifth, to the Class HG-1
Certificates.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1 Certificates, Class A-2FL Regular Interest, Class A-2 Certificates, Class
A-3 Certificates, Class A-4 Certificates, Class A-SB Certificates, Class A-1A
Certificates, Class A-M Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M Certificates,
Class N Certificates, Class O Certificates, Class P Certificates, Class Q
Certificates and Class NR Certificates shall be increased by the amount of the
Certificate Deferred Interest allocated to such Class of Certificates or the
Class A-2FL Regular Interest, as applicable, on such Distribution Date pursuant
to Section 4.06(a) above. On each Distribution Date the Certificate Deferred
Interest allocated to the Related Uncertificated Lower-Tier Interest (in the
case of (i) the Class A-1 Certificates, first, to the Class LA-1-1
Uncertificated Interest, second, to the Class LA-1-2 Uncertificated Interest,
third, to the Class LA-1-3 Uncertificated Interest, fourth, to the Class LA-1-4
Uncertificated Interest and fifth, to the Class LA-1-5 Uncertificated Interest,
in each case, until reduced to zero, (ii) the Class A-1A Certificates, first, to
the Class LA-1A-1 Uncertificated Interest, second, to the Class LA-1A-2
Uncertificated Interest, third, to the Class LA-1A-3 Uncertificated Interest,
fourth, to the Class LA-1A-4 Uncertificated Interest, fifth, to the Class
LA-1A-5 Uncertificated Interest, sixth, to the Class LA-1A-6 Uncertificated
Interest, seventh, to the Class LA-1A-7 Uncertificated Interest, eighth, to the
Class LA-1A-8 Uncertificated Interest, ninth, to the Class LA-1A-9
Uncertificated Interest, tenth, to the Class LA-1A-10 Uncertificated Interest,
eleventh, to the Class LA-1A-11 Uncertificated Interest, twelfth, to the Class
LA-1A-12 Uncertificated Interest, thirteenth, to the Class LA-1A-13
Uncertificated Interest, fourteenth, to the Class LA-1A-14 Uncertificated
Interest, and fifteenth, to the Class LA-1A-15 Uncertificated Interest, in each
case, until reduced to zero, (iii) the Class A-2FL Regular Interest, first to
the Class LA-2FL-1 Uncertificated Interest, second, to the Class LA-2FL-2
Uncertificated Interest, and third, to the Class LA-2FL-3 Uncertificated
Interest, in each case, until reduced to zero; (iv) the Class A-2 Certificates,
first, to the Class LA-2-1 Uncertificated Interest and second, to the Class
LA-2-2 Uncertificated Interest, in each case, until reduced to zero, (v) the
Class A-3 Certificates, first, to the Class LA-3-1 Uncertificated Interest, and
second, to the Class LA-3-2 Uncertificated Interest, in each case, until reduced
to zero, (vi) the Class A-4 Certificates, first, to the Class LA-4-1
Uncertificated Interest, second, to the Class LA-4-2 Uncertificated Interest,
third, to the Class LA-4-3 Uncertificated Interest, fourth, to the Class LA-4-4
Uncertificated Interest, fifth, to the Class LA-4-5 Uncertificated Interest,
sixth, to the Class LA-4-6 Uncertificated Interest and seventh, to the Class
LA-4-7 Uncertificated Interest, in each case, until reduced to zero, (vii) the
Class A-SB Certificates, first, to the Class LA-SB-1 Uncertificated Interest,
second, to the Class LA-SB-2 Uncertificated Interest, third, to the Class
LA-SB-3 Uncertificated Interest, fourth, to the Class LA-SB-4 Uncertificated
Interest, fifth, to the Class LA-SB-5 Uncertificated Interest, and sixth, to the
Class LA-SB-6 Uncertificated Interest, in each case, until reduced to zero,
(viii) the Class G Certificates, first, to the Class LG-1 Uncertificated
Interest, second, to the Class LG-2 Uncertificated Interest, and third, to the
Class LG-3 Uncertificated Interest, in each case, until reduced to zero, (ix)
the Class H Certificates, first, to the Class LH-1 Uncertificated Interest,
second, to the Class LH-2 Uncertificated Interest and third, to the Class LH-3
Uncertificated Interest, in each case, until reduced to zero, (x) the Class J
Certificates, first, to the Class LJ-1 Uncertificated Interest, second, to the
Class LJ-2 Uncertificated Interest and third, to the Class LJ-3 Uncertificated
Interest, in each case, until reduced to zero, (xi) the Class K Certificates,
first, to the Class LK-1 Uncertificated Interest, second, to the Class LK-2
Uncertificated Interest and third, to the Class LK-3 Uncertificated Interest, in
each case, until reduced to zero, (xii) the Class L Certificates, first, to the
Class LL-1 Uncertificated Interest, and second, to the Class LL-2 Uncertificated
Interest, in each case, until reduced to zero, (xiii) the Class M Certificates,
first, to the Class LM-1 Uncertificated Interest, and second, to the Class LM-2
Uncertificated Interest, in each case, until reduced to zero and (xiv) the Class
Q Certificates, first, to the Class LQ-1 Uncertificated Interest, and second, to
the Class LQ-2 Uncertificated Interest, in each case, until reduced to zero.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates or the Class A-2FL Regular Interest, as
applicable, shall be allocated in reduction of the amount of interest
distributable to the Related Uncertificated Lower-Tier Interest with respect
thereto (in the case of (i) the Class A-1 Certificates, first, to the Class
LA-1-1 Uncertificated Interest, second, to the Class LA-1-2 Uncertificated
Interest, third, to the Class LA-1-3 Uncertificated Interest, fourth, to the
Class LA-1-4 Uncertificated Interest, and fifth, to the Class LA-1-5
Uncertificated Interest, in each case, until reduced to zero, (ii) the Class
A-1A Certificates, first, to the Class LA-1A-1 Uncertificated Interest, second,
to the Class LA-1A-2 Uncertificated Interest, third, to the Class LA-1A-3
Uncertificated Interest, fourth, to the Class LA-1A-4 Uncertificated Interest,
fifth, to the Class LA-1A-5 Uncertificated Interest, sixth, to the Class LA-1A-6
Uncertificated Interest, seventh, to the Class LA-1A-7 Uncertificated Interest,
eighth, to the Class LA-1A-8 Uncertificated Interest, ninth, to the Class
LA-1A-9 Uncertificated Interest, tenth, to the Class LA-1A-10 Uncertificated
Interest, eleventh, to the Class LA-1A-11 Uncertificated Interest, twelfth, to
the Class LA-1A-12 Uncertificated Interest, thirteenth, to the Class LA-1A-13
Uncertificated Interest, fourteenth, to the Class LA-1A-14 Uncertificated
Interest, and fifteenth, to the Class LA-1A-15 Uncertificated Interest, in each
case, until reduced to zero, (iii) the Class A-2FL Regular Interest, first, to
the Class LA-2FL-1 Uncertificated Interest, second, to the Class LA-2FL-2
Uncertificated Interest, and third, to the Class LA-2FL-3 Uncertificated
Interest, in each case, until reduced to zero, (iv) the Class A-2 Certificates,
first, to the Class LA-2-1 Uncertificated Interest, and second, to the Class
LA-2-2 Uncertificated Interest, in each case, until reduced to zero, (v) the
Class A-3 Certificates, first, to the Class LA-3-1 Uncertificated Interest, and
second, to the Class LA-3-2 Uncertificated Interest, in each case, until reduced
to zero, (vi) the Class A-4 Certificates, first, to the Class LA-4-1
Uncertificated Interest, second, to the Class LA-4-2 Uncertificated Interest,
third, to the Class LA-4-3 Uncertificated Interest, fourth, to the Class LA-4-4
Uncertificated Interest, fifth, to the Class LA-4-5 Uncertificated Interest,
sixth, to the Class LA-4-6 Uncertificated Interest and seventh, to the Class
LA-4-7 Uncertificated Interest, in each case, until reduced to zero, (vii) the
Class A-SB Certificates, first, to the Class LA-SB-1 Uncertificated Interest,
second, to the Class LA-SB-2 Uncertificated Interest, third, to the Class
LA-SB-3 Uncertificated Interest, fourth, to the Class LA-SB-4 Uncertificated
Interest, fifth, to the Class LA-SB-5 Uncertificated Interest, and sixth, to the
Class LA-SB-6 Uncertificated Interest, in each case, until reduced to zero,
(viii) the Class G Certificates, first, to the Class LG-1 Uncertificated
Interest, second, to the Class LG-2 Uncertificated Interest, and third, to the
Class LG-3 Uncertificated Interest, in each case, until reduced to zero, (ix)
the Class H Certificates, first, to the Class LH-1 Uncertificated Interest,
second, to the Class LH-2 Uncertificated Interest, and third, to the Class LH-3
Uncertificated Interest, in each case, until reduced to zero, (x) the Class J
Certificates, first, to the Class LJ-1 Uncertificated Interest, second, to the
Class LJ-2 Uncertificated Interest, and third, to the Class LJ-3 Uncertificated
Interest, in each case, until reduced to zero, (xi) the Class K Certificates,
first, to the Class LK-1 Uncertificated Interest, second, to the Class LK-2
Uncertificated Interest and third, to the Class LK-3 Uncertificated Interest, in
each case, until reduced to zero, (xii) the Class L Certificates, first, to the
Class LL-1 Uncertificated Interest, and second, to the Class LL-2 Uncertificated
Interest, in each case, until reduced to zero, (xiii) the Class M Certificates,
first, to the Class LM-1 Uncertificated Interest, and second, to the Class LM-2
Uncertificated Interest, in each case, until reduced to zero and (xiv) the Class
Q Certificates, first, to the Class LQ-1 Uncertificated Interest, and second, to
the Class LQ-2 Uncertificated Interest, in each case, until reduced to zero. On
each Distribution Date, to the extent provided in Section 4.06(b) with respect
to the Related Certificates, Certificate Deferred Interest will be added to the
Lower Tier Principal Amount of the Uncertificated Lower Tier Interests in the
same manner as the interest thereon was reduced pursuant to the preceding
sentence.
Section 4.07 Grantor Trust Reporting. The parties intend that the
portion of the Trust Fund constituting the Grantor Trust, which consists of (i)
the Excess Interest allocable to the Mortgage Loans, proceeds thereof held in
the Certificate Accounts pertaining to the Excess Interest allocable to the
Mortgage Loans and the Excess Interest Distribution Account and (ii) the Class
A-2FL Regular Interest, the Swap Contract, the Floating Rate Account and
proceeds thereof, shall constitute, and that the affairs of the Trust Fund
(exclusive of the Lower-Tier REMIC and the Upper-Tier REMIC) shall be conducted
so as to qualify such portion as, a "grantor trust" under subpart E, Part I of
subchapter J of the Code, and the provisions hereof shall be interpreted
consistently with this intention. In furtherance of such intention, the Trustee
shall (A) file, or cause to be filed, Internal Revenue Service Form 1041 or such
other form as may be applicable with the Internal Revenue Service, (B) furnish,
or cause to be furnished, to the Class S Certificateholders, their allocable
share of income with respect to Excess Interest accrued or received, as
applicable, and (C) furnish, or cause to be furnished, to the Class A-2FL
Certificateholders, their allocable share of income and expense with respect to
the Class A-2FL Regular Interest and the Swap Contract, each in the time or
times and in the manner required by the Code.
[End of Article IV]
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates will be
substantially in the respective forms annexed hereto as Exhibits A-1 through and
including A-36. The Certificates will be issuable in registered form only;
provided, however, that in accordance with Section 5.03 beneficial ownership
interests in the Regular Certificates shall initially be held and transferred
through the book-entry facilities of the Depository. The Class S, Class R and
Class LR Certificates will each be issuable in one or more registered,
definitive physical certificates (each, a "Definitive Certificate")
substantially in the form of Certificates of each Class and with such applicable
legends as are set forth in the Exhibits hereto corresponding to such Class.
Each Certificate will share ratably in all rights of the related Class. The
Class X Certificates will be issuable only in minimum Denominations of
authorized Original Notional Amount of not less than $1,000,000 and in integral
multiples of $1.00 in excess thereof. The Offered Certificates (other than the
Class X-2 Certificates) will be issuable only in minimum Denominations of
authorized initial Certificate Balance of not less than $10,000, and in integral
multiples of $1.00 in excess thereof. The Non-Registered Certificates (other
than the Class X-1, the Class S and the Residual Certificates) will be issuable
in minimum Denominations of authorized initial Certificate Balance of not less
than $250,000, and in integral multiples of $1.00 in excess thereof. If the
Original Certificate Balance or Original Notional Amount, as applicable, of any
Class does not equal an integral multiple of $1.00, then a single additional
Certificate of such Class may be issued in a minimum denomination of authorized
initial Certificate Balance or initial Notional Amount, as applicable, that
includes the excess of (i) the Original Certificate Balance or initial Notional
Amount, as applicable, of such Class over (ii) the largest integral multiple of
$1.00 that does not exceed such amount. The Class S, Class R and Class LR
Certificates will be issuable only in one or more Definitive Certificates in
denominations representing Percentage Interests of not less than 20%. With
respect to any Certificate or any beneficial interest in a Certificate, the
"Denomination" thereof shall be (i) the amount (a) set forth on the face thereof
or, (b) set forth on a schedule attached thereto or (c) in the case of any
beneficial interest in a Book-Entry Certificate, the interest of the related
Certificate Owner in the applicable Class of Certificates as reflected on the
books and records of the Depository or related Participants, as applicable, (ii)
expressed in terms of initial Certificate Balance or initial Notional Amount, as
applicable, and (iii) be in an authorized denomination, as set forth above. The
Book-Entry Certificates will be issued as one or more certificates registered in
the name of a nominee designated by the Depository, and Certificate Owners will
hold interests in the Book-Entry Certificates through the book-entry facilities
of the Depository in the minimum Denominations and aggregate Denominations as
set forth in the above. No Certificate Owner of a Book-Entry Certificate of any
Class thereof will be entitled to receive a Definitive Certificate representing
its interest in such Class, except as provided in Section 5.03 herein. Unless
and until Definitive Certificates are issued in respect of a Class of Book-Entry
Certificates, beneficial ownership interests in such Class of Certificates will
be maintained and transferred on the book-entry records of the Depository and
Depository Participants, and all references to actions by Holders of such Class
of Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(a) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized signatories of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. LaSalle Bank
National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, is hereby initially appointed Authenticating Agent with power to
act on the Trustee's behalf in the authentication and delivery of the
Certificates in connection with transfers and exchanges as herein provided. If
the Authenticating Agent is terminated, the Trustee shall appoint a successor
authenticating agent, which may be the Trustee or an Affiliate thereof.
(b) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be maintained at
the office of the Certificate Registrar a Certificate Register in which, subject
to such reasonable regulations as the Certificate Registrar may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. LaSalle Bank
National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, is hereby initially appointed Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided. The Certificate Registrar may appoint, by a written
instrument delivered to the Depositor, the Trustee, the Special Servicer and the
Master Servicers, 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. The Depositor, the Trustee, the Master Servicers and the Special
Servicer shall have the right to inspect the Certificate Register or to obtain a
copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in the
Certificate Register. The names and addresses of all Certificateholders and the
names and addresses of the transferees of any Certificates shall be registered
in the Certificate Register; provided, however, in no event shall the
Certificate Registrar be required to maintain in the Certificate Register the
names of Certificate Owners. The Person in whose name any Certificate is so
registered shall be deemed and treated as the sole owner and Holder thereof for
all purposes of this Agreement and the Certificate Registrar, the Master
Servicers, the Trustee, the Special Servicer and any agent of any of them shall
not be affected by any notice or knowledge to the contrary. A Definitive
Certificate is transferable or exchangeable only upon the surrender of such
Certificate to the Certificate Registrar at its office maintained at LaSalle
Bank National Association, as Certificate Registrar, 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and Trust
Services Group, X.X. Xxxxxx 2005-LDP5 (the "Registrar Office"), together with an
assignment and transfer (executed by the Holder or his duly authorized
attorney). Subject to the requirements of Sections 5.02(b), (c) and (d), the
Certificate Registrar shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination as the
Definitive Certificate being surrendered. Such Certificates shall be delivered
by the Certificate Registrar in accordance with Section 5.02(e). Each
Certificate surrendered for registration of transfer shall be canceled, and the
Certificate Registrar shall hold such canceled Certificates in accordance with
its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof or by the Initial Purchaser to American
Capital Strategies, Ltd) is to be made in reliance upon an exemption from the
Securities Act, and under the applicable state securities laws, then either:
(i) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate During the Restricted Period. If, during the Restricted
Period, a Certificate Owner of an interest in a Rule 144A Book-Entry
Certificate wishes at any time to transfer its beneficial interest in such
Rule 144A Book-Entry Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such Certificate Owner may, in addition to complying with all
applicable rules and procedures of the Depository and Clearstream or
Euroclear applicable to transfers by their respective participants (the
"Applicable Procedures"), transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in the
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(i). Upon receipt by the Certificate
Registrar at its Registrar Office of (1) written instructions given in
accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in the Regulation S Book-Entry Certificate in an amount equal to the
Denomination of the beneficial interest in the Rule 144A Book-Entry
Certificate to be transferred, (2) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and the Euroclear or Clearstream
account, as the case may be) to be credited with, and the account of the
Depository Participant to be debited for, such beneficial interest, and
(3) a certificate in the form of Exhibit K hereto given by the Certificate
Owner that is transferring such interest, the Certificate Registrar, as
custodian of the Book-Entry Certificates shall reduce the Denomination of
the Rule 144A Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred, and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the Rule
144A Book-Entry Certificate was reduced upon such transfer.
(ii) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate After the Restricted Period. If, after the Restricted Period,
a Certificate Owner of an interest in a Rule 144A Book-Entry Certificate
wishes at any time to transfer its beneficial interest in such Rule 144A
Book-Entry Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such holder may, in addition to complying with all Applicable
Procedures, transfer or cause the transfer of such beneficial interest for
an equivalent beneficial interest in a Regulation S Book-Entry Certificate
only upon compliance with the provisions of this Section 5.02(b)(ii). Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in the Regulation S Book-Entry
Certificate in an amount equal to the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be transferred, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Depository Participant
(and, in the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account, as the case may be) to
be credited with, and the account of the Depository Participant to be
debited for, such beneficial interest, and (3) a certificate in the form
of Exhibit N hereto given by the Certificate Owner that is transferring
such interest, the Certificate Registrar as custodian of the Book-Entry
Certificates shall reduce the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the aggregate Denomination of the
beneficial interest in the Rule 144A Book-Entry Certificate to be so
transferred, and credit or cause to be credited to the account of the
Person specified in such instructions (who shall be a Depository
Participant acting for or on behalf of Euroclear or Clearstream, or both,
as the case may be) a beneficial interest in the Regulation S Book-Entry
Certificate having a Denomination equal to the amount by which the
Denomination of the Rule 144A Book-Entry Certificate was reduced upon such
transfer.
(iii) Regulation S Book-Entry Certificate to Rule 144A Book-Entry
Certificate. If the Certificate Owner of an interest in a Regulation S
Book-Entry Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Book-Entry Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause the transfer
of such beneficial interest for an equivalent beneficial interest in the
Rule 144A Book-Entry Certificate only upon compliance with the provisions
of this Section 5.2(b)(iii). Upon receipt by the Certificate Registrar at
its Registrar Office of (1) written instructions given in accordance with
the Applicable Procedures from a Depository Participant directing the
Certificate Registrar to credit or cause to be credited to another
specified Depository Participant's account a beneficial interest in the
Rule 144A Book-Entry Certificate in an amount equal to the Denomination of
the beneficial interest in the Regulation S Book-Entry Certificate to be
transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Depository
Participant to be credited with, and the account of the Depository
Participant (or, if such account is held for Euroclear or Clearstream, the
Euroclear or Clearstream account, as the case may be) to be debited for
such beneficial interest, and (3) with respect to a transfer of a
beneficial interest in the Regulation S Book-Entry Certificate for a
beneficial interest in the related Rule 144A Book-Entry Certificate (i)
during the Restricted Period, a certificate in the form of Exhibit O
hereto given by the Certificate Owner, or (ii) after the Restricted
Period, an Investment Representation Letter in the form of Exhibit C
attached hereto from the transferee to the effect that such transferee is
a Qualified Institutional Buyer (an "Investment Representation Letter"),
the Certificate Registrar, as custodian of the Book-Entry Certificates,
shall reduce the Denomination of the Regulation S Book-Entry Certificate
by the Denomination of the beneficial interest in the Regulation S
Book-Entry Certificate to be transferred, and, concurrently with such
reduction, increase the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Regulation S Book-Entry Certificate to be so transferred, and credit
or cause to be credited to the account of the Person specified in such
instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Rule 144A Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the
Regulation S Book-Entry Certificate was reduced upon such transfer.
(iv) Transfers Within Regulation S Book-Entry Certificates During
Restricted Period. If, during the Restricted Period, the Certificate Owner
of an interest in a Regulation S Book-Entry Certificate wishes at any time
to transfer its beneficial interest in such Certificate to a Person who
wishes to take delivery thereof in the form of a Regulation S Book-Entry
Certificate, such Certificate Owner may transfer or cause the transfer of
such beneficial interest for an equivalent beneficial interest in such
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(iv) and all Applicable Procedures. Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in such Regulation S
Book-Entry Certificate in an amount equal to the Denomination of the
beneficial interest to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Depository Participant to be credited with, and the
account of the Depository Participant (or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as the
case may be) to be debited for, such beneficial interest and (3) a
certificate in the form of Exhibit P hereto given by the transferee, the
Certificate Registrar, as custodian of the Book-Entry Certificates, shall
debit the account of the transferring Regulation S Certificateholder and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount specified in such instructions by which
the account to be debited was reduced upon such transfer.
(v) Transfers of Book-Entry Certificates to Definitive Certificates.
Any and all transfers from a Book-Entry Certificate to a transferee
wishing to take delivery in the form of a Definitive Certificate will
require the transferee to take delivery subject to the restrictions on the
transfer of such Definitive Certificate described on the face of such
Certificate, and such transferee agrees that it will transfer such
Definitive Certificate only as provided therein and herein. No such
transfer shall be made and the Certificate Registrar shall not register
any such transfer unless such transfer is made in accordance with this
Section 5.02(b)(v).
(A) Transfers of a beneficial interest in a Book-Entry
Certificate to an Institutional Accredited Investor will require
delivery of such Certificate to the transferee in the form of a
Definitive Certificate and the Certificate Registrar shall register
such transfer only if prior to the transfer (i) two years have
expired after the later of the Closing Date or the last date on
which the Depositor or any Affiliate thereof held such Certificate,
or (ii) such transferee furnishes to the Certificate Registrar (1)
an Investment Representation Letter in the form of Exhibit C
attached hereto to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an applicable
exemption under the Act, and (2) if required by the Certificate
Registrar, an opinion of counsel acceptable to the Certificate
Registrar that such transfer is in compliance with the Act.
(B) Transfers of a beneficial interest in a Book-Entry
Certificate to a Regulation S Investor wishing to take delivery in
the form of a Definitive Certificate will be registered by the
Certificate Registrar only if the transferor has provided the
Certificate Registrar with a certificate in the form of Exhibit P
attached hereto. Transfers of a beneficial interest in a Book-Entry
Certificate to a Qualified Institutional Buyer wishing to take
delivery in the form of a Definitive Certificate will be registered
by the Certificate Registrar only if such transferee furnishes to
the Certificate Registrar an Investment Representation Letter in the
form of Exhibit C attached hereto to the effect that the transfer is
being made to a Qualified Institutional Buyer in accordance with
Rule 144A under the Act.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Book-Entry Certificate to a Definitive
Certificate pursuant to subparagraph (B) above shall be made prior
to the expiration of the Restricted Period. Upon acceptance for
exchange or transfer of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate, as provided herein, the
Certificate Registrar shall endorse on the schedule affixed to the
related Book-Entry Certificate (or on a continuation of such
schedule affixed to such Book-Entry Certificate and made a part
thereof) an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the Denomination of such
Book-Entry Certificate equal to the Denomination of such Definitive
Certificate issued in exchange therefor or upon transfer thereof.
(vi) Transfers of Definitive Certificates to the Book-Entry
Certificates. If a Holder of a Definitive Certificate (other than a Class
S Certificate) wishes at any time to transfer such Certificate to a Person
who wishes to take delivery thereof in the form of a beneficial interest
in the related Regulation S Book-Entry Certificate or the related Rule
144A Book-Entry Certificate, such transfer may be effected only in
accordance with the Applicable Procedures, and this Section 5.02(b)(vi).
Upon receipt by the Certificate Registrar at the Registrar Office of (1)
the Definitive Certificate to be transferred with an assignment and
transfer pursuant to Section 5.02(d), (2) written instructions given in
accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in such Regulation S Book-Entry Certificate or such Rule 144A Book-Entry
Certificate, as the case may be, in an amount equal to the Denomination of
the Definitive Certificate to be so transferred, (3) a written order given
in accordance with the Applicable Procedures containing information
regarding the account of the Depository Participant (and, in the case of
any transfer pursuant to Regulation S, the Euroclear or Clearstream
account, as the case may be) to be credited with such beneficial interest,
and (4) (x) if delivery is to be taken in the form of a beneficial
interest in the Regulation S Book-Entry Certificate, a Regulation S
Transfer Certificate from the transferor or (y) an Investment
Representation Letter from the transferee to the effect that such
transferee is a Qualified Institutional Buyer, if delivery is to be taken
in the form of a beneficial interest in the Rule 144A Book-Entry
Certificate, the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered
in the name of the Holder, and the Certificate Registrar, as custodian of
the Book-Entry Certificates, shall increase the Denomination of the
Regulation S Book-Entry Certificate or the Rule 144A Book-Entry
Certificate, as the case may be, by the Denomination of the Definitive
Certificate to be so transferred, and credit or cause to be credited to
the account of the Person specified in such instructions (who, in the case
of any increase in the Regulation S Book-Entry Certificate during the
Restricted Period, shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
corresponding Denomination of the Rule 144A Book-Entry Certificate or the
Regulation S Book-Entry Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional Buyer
take delivery in the form of a beneficial interest in a Book-Entry Certificate.
(vii) Transfers of Definitive Certificates to Definitive
Certificates. Any and all transfers from a Definitive Certificate to a
transferee wishing to take delivery in the form of a Definitive
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Definitive Certificate described on
the face of such Certificate, and such transferee agrees that it will
transfer such Definitive Certificate only as provided therein and herein.
No such transfer shall be made and the Certificate Registrar shall not
register any such transfer unless such transfer is made in accordance with
procedures substantially consistent with those set forth in Section
5.02(b)(v), provided, however, that any such transfer of a Class S
Certificate shall be made only to a transferee that is a Qualified
Institutional Buyer.
(viii) An exchange of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate or Certificates, an exchange of a
Definitive Certificate or Certificates for a beneficial interest in the
Book-Entry Certificate and an exchange of a Definitive Certificate or
Certificates for another Definitive Certificate or Certificates (in each
case, whether or not such exchange is made in anticipation of subsequent
transfer, and in the case of the Book-Entry Certificates, so long as the
Book-Entry Certificates remain outstanding and are held by or on behalf of
the Depository), may be made only in accordance with this Section 5.02 and
in accordance with the rules of the Depository and Applicable Procedures.
Any purported or attempted transfer of a Non-Registered Certificate
in violation of the provisions of this Section 5.02(b) shall be null and void ab
initio and shall vest no rights in any purported transferee.
Unless the Non-Registered Certificates have been registered under
the Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C)
(OTHER THAN WITH RESPECT TO A CLASS S CERTIFICATE OR A RESIDUAL
CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (d) (OTHER THAN WITH RESPECT
TO A CLASS S CERTIFICATE OR A RESIDUAL CERTIFICATE) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A CLASS S CERTIFICATE OR A RESIDUAL CERTIFICATE) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE
REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN
INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN
TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED
INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A CLASS S
CERTIFICATE OR A RESIDUAL CERTIFICATE) AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A.
(c) With respect to the ERISA Restricted Certificates and the Class
S Certificates, no sale, transfer, pledge or other disposition of any such
Certificate shall be made unless the Certificate Registrar shall have received
either (i) a representation letter from the proposed purchaser or transferee of
such Certificate substantially in the form of Exhibit F attached hereto, to the
effect that such proposed purchaser or transferee is not (a) an employee benefit
plan subject to the fiduciary responsibility provisions of ERISA or a plan
subject to Section 4975 of the Code, or a governmental plan (as defined in
Section 3(32) of ERISA) or a church plan (as defined in Section 3(33) of ERISA)
for which no election has been made under Section 410(d) of the Code subject to
any federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each, a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such Plan and the application of Department of Labor Regulation
ss. 2510.3-101), other than, except in the case of the Class S Certificates, an
insurance company using the assets of its general account under circumstances
whereby the purchase and holding of such Certificates by such insurance company
would be exempt from the prohibited transaction provisions of ERISA and the Code
under Sections I and III of Prohibited Transaction Class Exemption 95-60 or (ii)
if such Certificate, other than a Class S Certificate, which may be held only by
a person not described in (a) or (b) above, is presented for registration in the
name of a purchaser or transferee that is any of the foregoing, an Opinion of
Counsel in form and substance satisfactory to the Certificate Registrar and the
Depositor to the effect that the acquisition and holding of such Certificate by
such purchaser or transferee will not constitute or result in a non-exempt
"prohibited transaction" within the meaning of ERISA, Section 4975 of the Code
or any Similar Law, and will not subject the Trustee, the Certificate Registrar,
the Master Servicers, the Special Servicer, the Underwriters, the Initial
Purchaser or the Depositor to any obligation or liability (including obligations
or liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in
addition to those set forth in the Agreement. The Certificate Registrar shall
not register the sale, transfer, pledge or other disposition of any ERISA
Restricted Certificate or Class S Certificate unless the Certificate Registrar
has received either the representation letter described in clause (i) above or
in the case of an ERISA Restricted Certificate, the Opinion of Counsel described
in clause (ii) above. The costs of any of the foregoing representation letters
or Opinions of Counsel shall not be borne by any of the Depositor, the Master
Servicers, the Special Servicer, the Trustee, the Underwriters, the Initial
Purchaser, the Certificate Registrar or the Trust Fund. Each Certificate Owner
of an ERISA Restricted Certificate or Class S Certificate shall be deemed to
represent that it is not a Person specified in clauses (a) or (b) above. Any
transfer, sale, pledge or other disposition of any ERISA Restricted Certificates
or Class S Certificates that would constitute or result in a prohibited
transaction under ERISA, Section 4975 of the Code or any Similar Law, or would
otherwise violate the provisions of this Section 5.02(c) shall be deemed
absolutely null and void ab initio, to the extent permitted under applicable
law.
So long as any of the Class of Certificates remains outstanding,
each Master Servicer or the Special Servicer, as applicable, will make
available, or cause to be made available, upon request, to any Holder and any
Person to whom any such Certificate of any such Class of Certificates may be
offered or sold, transferred, pledged or otherwise disposed of by such Holder,
information with respect to such Master Servicer, the Special Servicer or the
Mortgage Loans necessary to the provision of an Opinion of Counsel described in
this Section 5.02(c).
(i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee under clause
(ii) below to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) (i) No Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan, including any entity whose underlying assets
include Plan assets by reason of investment in the entity by such
Plan and the application of Department of Labor Regulations ss.
2510.3-101 (such Plan or Person, an "ERISA Prohibited Holder") or a
Non-U.S. Person and (ii) each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be a Permitted
Transferee and in each case shall promptly notify the Master
Servicers, the Trustee and the Certificate Registrar of any change
or impending change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is a
Permitted Transferee and is not a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, and that
it has reviewed the provisions of this Section 5.02(c) and agrees to
be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (b) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person or is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected; and
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a letter substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(c), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(c) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicers, the Authenticating
Agent and the Certificate Registrar shall be under any liability to any
Person for any registration of Transfer of a Residual Certificate that is
in fact not permitted by this Section 5.02(c) or for making any payments
due on such Certificate to the Holder thereof or for taking any other
action with respect to such Holder under the provisions of this Agreement;
provided, however, that the Certificate Registrar shall be under such
liability for a registration of Transfer of a Residual Certificate if it
has actual knowledge that the proposed Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a Non-U.S.
Person in violation of Section 5.02(c)(i)(C) above or is not a Permitted
Transferee.
(iii) The Trustee shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information in its possession and necessary to compute any tax imposed as
a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or Agent
thereof, including the information described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate.
(d) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor certificate registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Applicable Procedures, any Certificate Owner owning a beneficial interest in
a Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry for a Definitive Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within 5
Business Days of such request if made at such Registrar Office, or within 10
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at such Registrar Office or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Definitive
Certificate shall not be valid unless made at the Registrar Office or at the
office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of 15 days preceding any Distribution Date.
(e) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive Certificate
issued in exchange for a Certificate representing an interest in the Class A-1,
Class A-2FL, Class A-2, Class X-0, Xxxxx X-0, Class A-SB, Class A-1A, Class A-M,
Class A-J, Class B, Class C, Class D, Class E, Class F or Class X-2
Certificates) or a beneficial interest in a Book-Entry Certificate representing
a Non-Registered Certificate is being held by or for the benefit of a Person who
is not an Eligible Investor, or that such holding is unlawful under the laws of
a relevant jurisdiction, then the Certificate Registrar shall have the right to
void such transfer, if permitted under applicable law, or to require the
investor to sell such Definitive Certificate or beneficial interest in such
Book-Entry Certificate to an Eligible Investor within 14 days after notice of
such determination and each Certificateholder by its acceptance of a Certificate
authorizes the Certificate Registrar to take such action.
(f) The Certificate Registrar shall, upon written request, provide
an updated copy of the Certificate Register to the Trustee, the Master
Servicers, the Special Servicer and the Depositor.
(g) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(h) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates. (a) The Regular Certificates
shall initially be issued as one or more Certificates registered in the name of
the Depository or its nominee and, except as provided in subsection (c) below,
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.02(d) above or
subsection (c) below, shall not be entitled to Definitive Certificates in
respect of such Ownership Interests. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Master Servicers, 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 Trustee 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 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, the Trustee shall notify the affected Certificate Owners,
through the Depository with respect to all, any Class or any portion of any
Class of the Certificates or (iii) the Certificate Registrar determines that
Definitive Certificates are required in accordance with the provisions of
Section 5.03(e), of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the Book-Entry Certificates by the
Depository or any custodian acting on behalf of the Depository, accompanied by
registration instructions from the Depository for registration of transfer, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver, within 5 Business Days of such request if made at the
Registrar Office, or within 10 Business Days if made at the office of a transfer
agent (other than the Certificate Registrar), the Definitive Certificates to the
Certificate Owners identified in such instructions. None of the Depositor, the
Master Servicers, the Trustee, the Special Servicer, the Authenticating Agent
and the Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates for purposes of
evidencing ownership of any Class of Certificates, the registered Holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Certificate Registrar for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted or if the Special Servicer or the
Master Servicers, on the Trustee's behalf, has been directed to institute any
judicial proceeding in a court to enforce the rights of the Certificateholders
under the Certificates, and the Trustee has been advised by counsel that in
connection with such proceeding it is necessary or appropriate for the Trustee
to obtain possession of all or any portion of the Certificates evidenced by
Book-Entry Certificates, the Trustee may in its sole discretion determine that
such Certificates shall no longer be represented by such Book-Entry
Certificates. In such event, the Certificate Registrar will execute, the
Authenticating Agent will authenticate and the Certificate Registrar will
deliver, in exchange for such Book-Entry Certificates, Definitive Certificates
in a Denomination equal to the aggregate Denomination of such Book-Entry
Certificates to the party so requesting such Definitive Certificates. In such
event, the Certificate Registrar shall notify the affected Certificate Owners
and make appropriate arrangements for the effectuation of the purpose of this
clause.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate (other than a Definitive
Certificate that is a Class S Certificate) wishes at any time to transfer such
Certificate to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Book-Entry Certificate, such transfer may be effected
only in accordance with Applicable Procedures, Section 5.02(b) and this Section
5.03(g). Upon receipt by the Certificate Registrar at the Registrar Office of
(i) the Definitive Certificate to be transferred with an assignment and transfer
pursuant to Section 5.02(a), and all required items pursuant to Section
5.02(b)(v), the Certificate Registrar shall cancel such Definitive Certificate,
execute and deliver a new Definitive Certificate for the Denomination of the
Definitive Certificate not so transferred, registered in the name of the Holder
or the Holder's transferee (as instructed by the Holder), and the Certificate
Registrar as custodian of the Book-Entry Certificates shall increase the
Denomination of the related Book-Entry Certificate by the Denomination of the
Definitive Certificate to be so transferred, and credit or cause to be credited
to the account of the Person specified in such instructions a corresponding
Denomination of such Book-Entry Certificate.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates. If
(i) any mutilated Certificate is surrendered to the Certificate Registrar, or
the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (ii) there is delivered to the
Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of like Percentage Interest. Upon the issuance
of any new Certificate under this Section, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 5.05 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Master Servicers,
the Special Servicer, the Trustee, the Certificate Registrar and any agents of
any of them may treat the person in whose name such Certificate is registered as
the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 4.01 and for all other purposes whatsoever, except as and to
the extent provided in the definition of "Certificateholder," and none of the
Depositor, the Master Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them shall be affected by notice
to the contrary except as provided in Section 5.02(d).
Section 5.06 Certificate Ownership Certification. To the extent that
under the terms of this Agreement, it is necessary to determine whether any
Person is a Certificate Owner, the Trustee shall make such determination based
on a certificate of such Person which shall be addressed to the Trustee and
shall specify, in reasonable detail satisfactory to the Trustee, such Person's
name and address, the Class and Certificate Balance or Notional Amount of the
Regular Certificate beneficially owned, and any intermediaries through which
such Person's interest in such Regular Certificate is held (any such
certification, other than one which the Trustee shall refuse to recognize
pursuant to the following procedures, a "Certificate Ownership Certification");
provided, however, that the Trustee shall not knowingly recognize such Person as
a Certificate Owner if such Person, to the actual knowledge of a Responsible
Officer of such party, acquired its interest in a Regular Certificate in
violation of the transfer restrictions herein, or if such Person's certification
that it is a Certificate Owner is in direct conflict with information obtained
by the Trustee from the Depository or any Depository Participant with respect to
the identity of a Certificate Owner; provided, however, that to the extent the
Trustee is required to obtain such Certificate Owner information from the
Depository or any Depository Participant, the Trustee shall be reimbursed for
any cost or expense in obtaining such information from the Distribution Account.
The Trustee may conclusively rely on such Certificate Ownership Certification.
Each Master Servicer will only be required to acknowledge the status of any
Person as a Certificateholder or Certificate Owner to the extent that the
Trustee, at the request of such Master Servicer, identifies such Person as a
Certificateholder or Certificate Owner.
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Master Servicers and
the Special Servicer. The Depositor, the Master Servicers 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 Servicers and the Special Servicer herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Master Servicers or the Special Servicer. (a) Subject to subsection (b)
below, the Depositor, the Master Servicers and the Special Servicer each will
keep in full effect its existence, rights and franchises as a corporation under
the laws of the jurisdiction of its incorporation or organization, and each will
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the Certificates or
any of the Mortgage Loans and to perform its respective duties under this
Agreement.
(b) The Depositor, the Master Servicers and the Special Servicer
each may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which may be limited to all or substantially
all of its assets related to commercial mortgage loan servicing) to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor, any Master Servicer or the Special Servicer shall be a party, or any
Person succeeding to the business of the Depositor, any Master Servicer or the
Special Servicer, shall be the successor of the Depositor, any Master Servicer
and the Special Servicer, as the case may be, hereunder, without the execution
or filing of any paper (other than an assumption agreement wherein the successor
shall agree to perform the obligations of and serve as the Depositor, the
applicable Master Servicer or the Special Servicer, as the case may be, in
accordance with the terms of this Agreement) or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that such merger, consolidation or succession will not result
in a withdrawal, downgrading or qualification of the then-current ratings of the
Classes of Certificates that have been so rated (as evidenced by a letter to
such effect from each Rating Agency).
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicers, the Special Servicer and Others. (a) None of the Depositor, the
Master Servicers, the Special Servicer and their respective Affiliates or any of
the directors, officers, employees or agents of any of the foregoing shall be
under any liability to the Trust or the Certificateholders or the Companion
Holders for any action taken or for refraining from the taking of any action in
good faith pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Depositor, the Master
Servicers, the Special Servicer and their respective Affiliates or any such
Person against any breach of warranties or representations made herein or any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in the performance of duties or by reason of negligent
disregard of obligations and duties hereunder. The Depositor, the Master
Servicers and the Special Servicer and their respective Affiliates and any
director, officer, member, manager, employee or agent of the Depositor, such
Master Servicer or the Special Servicer or their respective Affiliates may rely
on any document of any kind which, prima facie, is properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor,
the Master Servicers, the Special Servicer and their respective Affiliates and
any director, officer, employee or agent of any of the foregoing shall be
indemnified and held harmless by the Trust against any and all claims, losses,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses incurred in
connection with any legal action (whether in equity or at law) or claim relating
to this Agreement, the Mortgage Loans, the Companion Loans or the Certificates,
other than any loss, liability or expense: (i) specifically required to be borne
thereby pursuant to the terms hereof; (ii) incurred in connection with any
breach of a representation or warranty made by it herein; (iii) incurred by
reason of bad faith, willful misconduct or negligence in the performance of its
obligations or duties hereunder, or by reason of negligent disregard of such
obligations or duties; or (iv) in the case of the Depositor and any of its
directors, officers, employees and agents, incurred in connection with any
violation by any of them of any state or federal securities law. Each of the
Master Servicers and the Special Servicer may rely, and shall be protected in
acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, financial statement,
agreement, appraisal, bond or other document (in electronic or paper format) as
contemplated by and in accordance with this Agreement and reasonably believed or
in good faith believed by such Master Servicer or the Special Servicer to be
genuine and to have been signed or presented by the proper party or parties and
each of them may consult with counsel, in which case any written advice of
counsel or Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel.
(b) None of the Depositor, the Master Servicers and the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal or administrative action (whether in equity or at law), proceeding,
hearing or examination that is not incidental to its respective duties under
this Agreement or which in its opinion may involve it in any expense or
liability not recoverable from the Trust Fund; provided, however, that the
Depositor, each Master Servicer or the Special Servicer may in its discretion
undertake any such action, proceeding, hearing or examination that it may deem
necessary or desirable in respect to this Agreement and the rights and duties of
the parties hereto and the interests of the Certificateholders hereunder. In
such event, the legal expenses and costs of such action, proceeding, hearing or
examination and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, each Master Servicer and the
Special Servicer shall be entitled to be reimbursed therefor out of amounts
attributable to the Mortgage Loans and Companion Loans on deposit in the
Certificate Accounts, as provided by Section 3.05(a).
(c) Each of the Master Servicers and the Special Servicer agrees to
indemnify the Depositor, the Trustee and the Trust and any director, officer,
employee or agent thereof, and hold them harmless, from and against any and all
claims, losses, penalties, fines, forfeitures, reasonable legal fees and related
costs, judgments, and any other costs, liabilities, fees and expenses that any
of them may sustain arising from or as a result of any willful misfeasance, bad
faith or negligence of such 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 such Master Servicer or the Special
Servicer, as the case may be, of its duties and obligations hereunder or by
reason of breach of any representations or warranties made herein; provided that
such indemnity shall not cover indirect or consequential damages. The Trustee or
the Depositor, as the case may be, shall immediately notify the applicable
Master Servicer or the Special Servicer, as applicable, if a claim is made by a
third party with respect to this Agreement or the Mortgage Loans entitling the
Trust to indemnification hereunder, whereupon such Master Servicer or the
Special Servicer, as the case may be, shall assume the defense of such claim
(with counsel reasonably satisfactory to the Trustee or the Depositor) and pay
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the applicable Master
Servicer or the Special Servicer, as the case may be, shall not affect any
rights any of the foregoing Persons may have to indemnification under this
Agreement or otherwise, unless such Master Servicer's, or the Special
Servicer's, as the case may be, defense of such claim is materially prejudiced
thereby.
(d) The Trustee agrees to indemnify each Master Servicer and the
Special Servicer and any director, officer, employee or agent thereof, and hold
them harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Trustee in the performance of its obligations and duties under this Agreement or
by reason of negligent disregard by the Trustee of its duties and obligations
hereunder or by reason of breach of any representations or warranties made
herein; provided, that such indemnity shall not cover indirect or consequential
damages. Each Master Servicer or the Special Servicer, as the case may be, shall
immediately notify the Trustee if a claim is made by a third party with respect
to this Agreement, whereupon the Trustee shall assume the defense of such claim
(with counsel reasonably satisfactory to the Master Servicers or the Special
Servicer) and pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so notify
the Trustee shall not affect any rights any of the foregoing Persons may have to
indemnification under this Agreement or otherwise, unless the Trustee's defense
of such claim is materially prejudiced thereby.
(e) The Depositor agrees to indemnify each Master Servicer and the
Special Servicer and any director, officer, employee or agent thereof, and hold
them harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Depositor, in the performance of its obligations and duties under this Agreement
or by reason of negligent disregard by the Depositor of its duties and
obligations hereunder or by reason of breach of any representations or
warranties made herein; provided, that such indemnity shall not cover indirect
or consequential damages. Each Master Servicer or the Special Servicer, as the
case may be, shall immediately notify the Depositor if a claim is made by a
third party with respect to this Agreement, whereupon the Depositor shall assume
the defense of such claim (with counsel reasonably satisfactory to the Master
Servicers or the Special Servicer) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the Depositor shall not affect any rights any of the
foregoing Persons may have to indemnification under this Agreement or otherwise,
unless the Depositor's defense of such claim is materially prejudiced thereby.
The indemnification provided herein shall survive the termination of
this Agreement and the termination or resignation of each Master Servicer, the
Trustee and the Special Servicer.
Section 6.04 Master Servicers and Special Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Master Servicers nor the
Special Servicer shall resign from their respective obligations and duties
hereby imposed on each of them except upon (a) determination that such party's
duties hereunder are no longer permissible under applicable law or (b) in the
case of each Master Servicer, upon the appointment of, and the acceptance of
such appointment by, a successor Master Servicer and receipt by the Trustee of
written confirmation from each applicable Rating Agency that such resignation
and appointment will not cause such Rating Agency to downgrade, withdraw or
qualify any of the then current ratings assigned by such Rating Agency to any
Class of Certificates. Only the applicable Master Servicer shall be permitted to
resign pursuant to clause (b) above. Any such determination permitting the
resignation of any Master Servicer or the Special Servicer pursuant to clause
(a) above shall be evidenced by an Opinion of Counsel (at the expense of the
resigning party) to such effect delivered to the Trustee and the Directing
Certificateholder. No such resignation by any Master Servicer or the Special
Servicer shall become effective until the Trustee or a successor Master Servicer
shall have assumed such Master Servicer's or Special Servicer's, as applicable,
responsibilities and obligations in accordance with Section 7.02. Upon any
termination or resignation of any Master Servicer hereunder, such Master
Servicer shall have the right and opportunity to appoint any successor Master
Servicer with respect to this Section 6.04, provided that such successor Master
Servicer is approved by the Directing Certificateholder, such approval not to be
unreasonably withheld.
Section 6.05 Rights of the Depositor in Respect of the Master
Servicers and the Special Servicer. The Depositor may, but is not obligated to,
enforce the obligations of each 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 any Master Servicer and the Special
Servicer hereunder or exercise the rights of any Master Servicer or Special
Servicer, as applicable, hereunder; provided, however, that each Master Servicer
and the Special Servicer shall not be relieved of any of their respective
obligations hereunder by virtue of such performance by the Depositor or its
designee. The Depositor shall not have any responsibility or liability for any
action or failure to act by each Master Servicer or the Special Servicer and is
not obligated to supervise the performance of each Master Servicer or the
Special Servicer under this Agreement or otherwise.
Section 6.06 The Master Servicers and the Special Servicer as
Certificate Owner. Each Master Servicer, the Special Servicer or any Affiliate
thereof may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not a Master Servicer, the Special Servicer or an Affiliate thereof.
Section 6.07 The Directing Certificateholder. The Directing
Certificateholder shall be entitled to advise (1) the Special Servicer with
respect to all Specially Serviced Mortgage Loans, (2) the Special Servicer and
applicable Master Servicer with respect to Non-Specially Serviced Mortgage Loans
as to which such Master Servicer must obtain the consent or deemed consent of
the Special Servicer, and (3) the Special Servicer with respect to all Mortgage
Loans for which an extension of maturity is being considered by the Special
Servicer or by the applicable Master Servicer subject to consent or deemed
consent of the Special Servicer, and notwithstanding anything herein to the
contrary, except as set forth in, and in any event subject to, Section 3.08(f)
and the second paragraph of this Section 6.07, the applicable Master Servicer or
Special Servicer, as the case may be, shall not be permitted to take any of the
following actions as to which the Directing Certificateholder has objected in
writing within ten (10) Business Days of being notified thereof (provided, that
if such written objection has not been received by such Master Servicer or the
Special Servicer, as applicable, within such ten (10) Business Day period, then
the Directing Certificateholder will be deemed to have waived its right to
object):
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Mortgage Loans as come into and continue
in default;
(ii) any modification, consent to a modification or waiver of a
monetary term or material non-monetary term (including, without
limitation, the timing of payments and acceptance of discounted payoffs
but excluding waiver of Default Interest or late payment charges) of a
Mortgage Loan or any extension of the maturity date of any Mortgage Loan;
(iii) any sale of a Defaulted Mortgage Loan or REO Property (other
than in connection with the termination of the Trust Fund) for less than
the applicable Purchase Price;
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any release of collateral or any acceptance of substitute or
additional collateral for a Mortgage Loan, or any consent to either of the
foregoing, other than required pursuant to the specific terms of the
related Mortgage Loan;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to a Mortgage Loan or any consent to such waiver or consent
to a transfer of the Mortgaged Property or interests in the borrower or
consent to the incurrence of additional debt, other than any such transfer
or incurrence of debt as may be effected without the consent of the lender
under the related loan agreement;
(vii) any property management company changes (with respect to a
Mortgage Loan with a principal balance greater than $2,500,000) or
franchise changes for which such Master Servicer is required to consent or
approve;
(viii) releases of any escrows, reserve accounts or letters of
credit held as performance escrows or reserves, other than those required
pursuant to the specific terms of the Mortgage Loans with no material
lender discretion;
(ix) any acceptance of an assumption agreement releasing a Mortgagor
from liability under a Mortgage Loan other than pursuant to the specific
terms of such Mortgage Loan; and
(x) any determination by the Special Servicer of an Acceptable
Insurance Default;
provided, that, in the event that the Special Servicer or the applicable Master
Servicer (in the event such Master Servicer is otherwise authorized by this
Agreement to take such action), as applicable, determines that immediate action
is necessary to protect the interests of the Certificateholders (as a collective
whole), the Special Servicer or such Master Servicer, as applicable may take any
such action without waiting for the Directing Certificateholder's response.
In addition, the Directing Certificateholder may direct the Special
Servicer to take, or to refrain from taking, such other actions with respect to
a Mortgage Loan, as the Directing Certificateholder may deem advisable or as to
which provision is otherwise made herein; provided, that notwithstanding
anything herein to the contrary, no such direction, and no objection
contemplated by the preceding paragraph, may require or cause the Special
Servicer to violate any provision of any Mortgage Loan, applicable law, this
Agreement or the REMIC Provisions, including without limitation the Special
Servicer's obligation to act in accordance with the Servicing Standards, or
expose each Master Servicer, the Special Servicer, the Trust Fund or the Trustee
to liability, or materially expand the scope of the Special Servicer's
responsibilities hereunder or cause the Special Servicer to act, or fail to act,
in a manner which in the reasonable judgment of the Special Servicer is not in
the best interests of the Certificateholders.
In the event the Special Servicer or any Master Servicer, as
applicable, determines that a refusal to consent by the Directing
Certificateholder or any advice from the Directing Certificateholder would
otherwise cause the Special Servicer or such Master Servicer, as applicable, to
violate the terms of any Mortgage Loan, applicable law, this Agreement,
including without limitation, the Servicing Standards, the Special Servicer or
such Master Servicer, as applicable, shall disregard such refusal to consent or
advise and notify the other servicer, the Directing Certificateholder, the
Trustee and the Rating Agencies of its determination, including a reasonably
detailed explanation of the basis therefor. The taking of, or refraining from
taking, any action by the applicable Master Servicer or Special Servicer in
accordance with the direction of or approval of the Directing Certificateholder
that does not violate any law or the Servicing Standards or any other provisions
of this Agreement, will not result in any liability on the part of the
applicable Master Servicer or the Special Servicer.
The Directing Certificateholder (and with respect to the Brookdale
Office Portfolio AB Mortgage Loan, the Jordan Creek AB Mortgage Loan and the
Houston Galleria Loan, the related Companion Holder or Houston Galleria
Controlling Holder, as applicable) shall have no liability to the Trust Fund or
the Certificateholders for any action taken, or for refraining from the taking
of any action, or for errors in judgment; provided, however, that the Directing
Certificateholder (and with respect to the Brookdale Office Portfolio AB
Mortgage Loan, the Jordan Creek AB Mortgage Loan and the Houston Galleria Loan,
the related Companion Holder or Houston Galleria Controlling Holder, as
applicable) shall not be protected against any liability to the Controlling
Class Certificateholder which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder acknowledges and agrees that the Directing
Certificateholder (and with respect to the Brookdale Office Portfolio AB
Mortgage Loan, the Jordan Creek AB Mortgage Loan and the Houston Galleria Loan,
the related Companion Holder or Houston Galleria Controlling Holder, as
applicable) may take actions that favor the interests of one or more Classes of
the Certificates, including the Controlling Class, over other Classes of the
Certificates, and that the Directing Certificateholder (and with respect to the
Brookdale Office Portfolio AB Mortgage Loan, the Jordan Creek AB Mortgage Loan
and the Houston Galleria Loan, the related Companion Holder or Houston Galleria
Controlling Holder, as applicable) may have special relationships and interests
that conflict with those of Holders of some Classes of the Certificates, that
the Directing Certificateholder (and with respect to the Brookdale Office
Portfolio AB Mortgage Loan, the Jordan Creek AB Mortgage Loan and the Houston
Galleria Loan, the related Companion Holder or Houston Galleria Controlling
Holder, as applicable) may act solely in the interests of the Holders of the
Controlling Class, that the Directing Certificateholder (and with respect to the
Brookdale Office Portfolio AB Mortgage Loan, the Jordan Creek AB Mortgage Loan
and the Houston Galleria Loan, the related Companion Holder or Houston Galleria
Controlling Holder, as applicable) does not have any duties or liability to the
Holders of any Class of Certificates other than the Controlling Class (except
with respect to the Companion Holder with respect to the Brookdale Office
Portfolio AB Mortgage Loan and the Jordan Creek AB Mortgage Loan and the Houston
Galleria Controlling Holder), that the Directing Certificateholder may take
actions that favor the interests of the Holders of the Controlling Class (and
with respect to a Companion Holder or Houston Galleria Controlling Holder, such
Companion Holder or Houston Galleria Controlling Holder, as the case may be)
over the interests of the Holders of one or more other classes of Certificates,
that the Directing Certificateholder (and with respect to the Brookdale Office
Portfolio AB Mortgage Loan, the Jordan Creek AB Mortgage Loan and the Houston
Galleria Loan, the related Companion Holder or Houston Galleria Controlling
Holder, as applicable) shall not be liable to any Certificateholder, by reason
of its having acted solely in the interests of the Holders of the Controlling
Class (and with respect to the Brookdale Office Portfolio AB Mortgage Loan, the
Jordan Creek AB Mortgage Loan and the Houston Galleria Loan, the related
Companion Holder or Houston Galleria Controlling Holder, as applicable), and
that the Directing Certificateholder (and with respect to the Brookdale Office
Portfolio AB Mortgage Loan, the Jordan Creek AB Mortgage Loan and the Houston
Galleria Loan, the related Companion Holder or Houston Galleria Controlling
Holder, as applicable) shall have no liability whatsoever for having so acted,
and no Certificateholder may take any action whatsoever against the Directing
Certificateholder (and with respect to the Brookdale Office Portfolio AB
Mortgage Loan, the Jordan Creek AB Mortgage Loan and the Houston Galleria Loan,
the related Companion Holder or Houston Galleria Controlling Holder, as
applicable) or any director, officer, employee, agent or principal thereof for
having so acted.
[End of Article VI]
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Master Servicers and Special
Servicer Termination. (a) "Event of Default," wherever used herein, means any
one of the following events:
(i) (A) any failure by the applicable Master Servicer to make any
deposit required to be made by that Master Servicer to the Certificate
Account on the day and by the time such deposit is required to be made
under the terms of this Agreement, which failure is not remedied within
one Business Day or (B) any failure by the applicable Master Servicer to
deposit into, or remit to the Trustee, or to deposit into the applicable
Companion Distribution Account, for deposit into, any Distribution Account
any amount required to be so deposited or remitted, which failure is not
remedied by 11:00 a.m. (New York City time) on the relevant Distribution
Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, within one Business Day after such deposit is required to be made
or to remit to the applicable Master Servicer for deposit into the
Certificate Account or to deposit into, or to remit to the Trustee for
deposit into, the Lower-Tier Distribution Account any amount required to
be so deposited or remitted by the Special Servicer pursuant to, and at
the time specified by, the terms of this Agreement; or
(iii) any failure on the part of the applicable Master Servicer or
the Special Servicer duly to observe or perform in any material respect
any of its other covenants or obligations contained in this Agreement
which continues unremedied for a period of 30 days (5 days in the case of
any Master Servicer's or Special Servicer's, as applicable, obligations
contemplated by Sections 3.13, 3.14 and 4.02(e) hereof, 15 days in the
case of the applicable Master Servicer's failure to make a Servicing
Advance or 15 days in the case of a failure to pay the premium for any
insurance policy required to be maintained hereunder) after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given (A) to the applicable Master Servicer or the Special
Servicer, as the case may be, by any other party hereto, or (B) to the
applicable Master Servicer or the Special Servicer, as the case may be,
with a copy to each other party to this Agreement, by the Holders of
Certificates of any Class evidencing as to that Class' Percentage
Interests aggregating not less than 25%; provided, however, if such
failure is capable of being cured and the applicable Master Servicer or
Special Servicer, as applicable, is diligently pursuing such cure, such
30-day period will be extended an additional 30 days; or
(iv) any breach on the part of the applicable Master Servicer or the
Special Servicer of any representation or warranty contained in Section
3.23 or Section 3.24, as applicable, which materially and adversely
affects the interests of any Class of Certificateholders or Companion
Holders and which continues unremedied for a period of 30 days after the
date on which notice of such breach, requiring the same to be remedied,
shall have been given to the Master Servicers or the Special Servicer, as
the case may be, by the Depositor or the Trustee, or to the Master
Servicers, the Special Servicer, the Depositor and the Trustee by the
Holders of Certificates evidencing Percentage Interests aggregating not
less than 25%; provided, however, if such breach is capable of being cured
and the applicable Master Servicer or Special Servicer, as the case may
be, is diligently pursuing such cure, such 30-day period will be extended
an additional 30 days; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the applicable Master Servicer or the Special Servicer and such decree or
order shall have remained in force undischarged, undismissed or unstayed
for a period of 60 days; or
(vi) the applicable 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 such Master Servicer or the Special Servicer or of or relating to all
or substantially all of its property; or
(vii) the applicable Master Servicer or the Special Servicer shall
admit in writing its inability to pay its debts generally as they become
due, file a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, make an assignment for the benefit
of its creditors, voluntarily suspend payment of its obligations or take
any corporate action in furtherance of the foregoing; or
(viii) a servicing officer of the Master Servicer or Special
Servicer, as applicable, obtains actual knowledge that Xxxxx'x has (i)
qualified, downgraded or withdrawn its rating or ratings of one or more
Classes of Certificates, or (ii) has placed one or more Classes of
Certificates on "watch status" in contemplation of a ratings downgrade or
withdrawal (and such "watch status" placement shall not have been
withdrawn by Xxxxx'x within 60 days of the date such servicing officer
obtained such actual knowledge) and, in the case of either of clauses (i)
or (ii), cited servicing concerns with the Master Servicer or Special
Servicer, as applicable, as the sole or material factor in such rating
action;
(ix) the applicable Master Servicer or the Special Servicer is no
longer listed on S&P's Select Servicer List as a U.S. Commercial Mortgage
Master Servicer or a U.S. Commercial Mortgage Special Servicer, as
applicable, and any of the ratings assigned to the Certificates have been
qualified, downgraded or withdrawn in connection with such a delisting; or
(x) the applicable Master Servicer ceases to be rated at least
"CMS3" by Fitch or the Special Servicer ceases to be rated at least "CSS3"
by Fitch and the rating is not restored within 30 days after the subject
downgrade or removal.
(b) If any Event of Default with respect to any Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Trustee or the Depositor may, and at the written direction of the Directing
Certificateholder or the Holders of Certificates entitled to at least 51% of the
Voting Rights, the Trustee shall, terminate, by notice in writing to the
Defaulting Party, with a copy of such notice to the Depositor, all of the rights
(subject to Section 3.11 and Section 6.03) and obligations of the Defaulting
Party under this Agreement and in and to the Mortgage Loans and the proceeds
thereof (other than as a Certificateholder or Companion Holder, if applicable);
provided, however, that the Defaulting Party shall be entitled to the payment of
accrued and unpaid compensation and reimbursement through the date of such
termination as provided for under this Agreement for services rendered and
expenses incurred. From and after the receipt by the Defaulting Party of such
written notice except as otherwise provided in this Article VII, all authority
and power of the Defaulting Party under this Agreement, whether with respect to
the Certificates (other than as a Holder of any Certificate) or the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee with respect to a
termination of any Master Servicer or the Special Servicer pursuant to and under
this Section, and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. Each Master Servicer and Special Servicer each
agree that if it is terminated pursuant to this Section 7.01(b), it shall
promptly (and in any event no later than 20 Business Days subsequent to its
receipt of the notice of termination) provide the Trustee with all documents and
records requested by it to enable it to assume the applicable Master Servicer's
or the Special Servicer's, as the case may be, functions hereunder, and shall
cooperate with the Trustee in effecting the termination of such Master
Servicer's or the Special Servicer's, as the case may be, responsibilities and
rights (subject to Section 3.11 and Section 6.03) hereunder, including, without
limitation, the transfer within 5 Business Days to the Trustee or the applicable
Master Servicer, as applicable, for administration by it of all cash amounts
which shall at the time be or should have been credited by such Master Servicer
to the applicable Certificate Account or any Servicing Account (if it is the
Defaulting Party) or by the Special Servicer to the REO Account (if it is the
Defaulting Party) or thereafter be received with respect to the Mortgage Loans
or any REO Property (provided, however, that each Master Servicer and the
Special Servicer each shall, if terminated pursuant to this Section 7.01(b),
continue to be entitled to receive all amounts accrued or owing to it under this
Agreement on or prior to the date of such termination, whether in respect of
Advances (in the case of the Special Servicer or the applicable Master Servicer)
or otherwise, and it and its Affiliates and the directors, managers, officers,
members, employees and agents of it and its Affiliates shall continue to be
entitled to the benefits of Section 3.11 and Section 6.03 notwithstanding any
such termination).
(c) If any Master Servicer receives notice of termination solely due
to an Event of Default under Section 7.01(b) solely due to an Event of Default
under Section 7.01(a)(viii) through (x) and if such Master Servicer to be
terminated pursuant to Section 7.01(b) provides the Trustee with the appropriate
"request for proposal" materials within five (5) Business Days following such
termination notice, then such Master Servicer shall continue to service as
Master Servicer hereunder until a successor Master Servicer is selected in
accordance with this Section 7.01(c). Upon receipt of the "request for proposal"
materials, Trustee shall promptly thereafter (using such "request for proposal"
materials provided by such Master Servicer pursuant to Section 7.01(b)) solicit
good faith bids for the rights to service the Mortgage Loans and Companion Loans
under this Agreement from at least three (3) Persons qualified to act as Master
Servicer hereunder in accordance with Sections 6.02 and 7.02 (any such Person so
qualified, a "Qualified Bidder") or, if three (3) Qualified Bidders cannot be
located, then from as many persons as the Trustee can determine are Qualified
Bidders; provided that, at the Trustee's request, the applicable Master Servicer
shall supply the Trustee with the names of Persons from whom to solicit such
bids; and provided further, that the Trustee shall not be responsible if less
than three (3) or no Qualified Bidders submit bids for the right to service the
Mortgage Loans and Companion Loans under this Agreement. The bid proposal shall
require any Successful Bidder (as defined below), as a condition of such bid, to
enter into this Agreement as successor Master Servicer, and to agree to be bound
by the terms hereof, within 45 days after the notice of termination of the
applicable Master Servicer. The materials provided to the Trustee shall provide
for soliciting bids: (i) on the basis of such successor Master Servicer
retaining all Sub-Servicers to continue the primary servicing of the Mortgage
Loans and Companion Loans pursuant to the terms of the respective Sub-Servicing
Agreements (each, a "Servicing-Retained Bid"); and (ii) on the basis of
terminating each Sub-Servicing Agreement and Sub-Servicer that it is permitted
to terminate in accordance with Section 3.22 (each, a "Servicing-Released Bid").
The Trustee shall select the Qualified Bidder with the highest cash
Servicing-Retained Bid (or, if none, the highest cash Servicing-Released Bid)
(the "Successful Bidder") to act as successor Master Servicer hereunder;
provided, however, that if the Trustee does not receive confirmation in writing
by each Rating Agency that the appointment of such Successful Bidder as
successor Master Servicer will not result in the withdrawal, downgrade, or
qualification of the rating assigned by the Rating Agency to any class of
Certificates within 10 days after the selection of such Successful Bidder, then
the Trustee shall repeat the bid process described above (but subject to the
above-described 45-day time period) until such confirmation is obtained. The
Trustee shall direct the Successful Bidder to enter into this Agreement as
successor Master Servicer pursuant to the terms hereof no later than 45 days
after notice of the termination of the Master Servicer.
Upon the assignment and acceptance of master servicing rights
hereunder (subject to the terms of Section 3.11) to and by the Successful
Bidder, the Trustee shall remit or cause to be remitted (i) if the successful
bid was a Servicing-Retained Bid, to the applicable Master Servicer to be
terminated pursuant to Section 7.01(b), the amount of such cash bid received
from the Successful Bidder (net of "out-of-pocket" expenses incurred in
connection with obtaining such bid and transferring servicing) and (ii) if the
successful bid was a Servicing-Released Bid, to the Master Servicer and each
terminated Sub-Servicer its respective Bid Allocation.
The applicable Master Servicer to be terminated pursuant to Section
7.01(b) shall be responsible for all out-of-pocket expenses incurred in
connection with the attempt to sell its rights to service the Mortgage Loans,
which expenses are not reimbursed to the party that incurred such expenses
pursuant to the preceding paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within the above-described time period or no
Successful Bidder was identified within the above-described time period, the
applicable Master Servicer to be terminated pursuant to Section 7.01(b) shall
reimburse the Trustee for all reasonable "out-of-pocket" expenses incurred by
the Trustee in connection with such bid process and the Trustee shall have no
further obligations under this Section 7.01(c). The Trustee thereafter may act
or may select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
(d) The Directing Certificateholder shall be entitled to terminate
the rights (subject to Section 3.11 and Section 6.03(d)) and obligations of the
Special Servicer under this Agreement, with or without cause, upon ten (10)
Business Days' notice to the Special Servicer, the Master Servicers and the
Trustee; such termination to be effective upon the appointment of a successor
Special Servicer meeting the requirements of this Section 7.01(d). Upon a
termination or resignation of such Special Servicer, the Directing
Certificateholder shall appoint a successor Special Servicer; provided, however,
that (i) such successor will meet the requirements set forth in Section 7.02 and
(ii) as evidenced in writing by each of the Rating Agencies, the proposed
successor of such Special Servicer will not, in and of itself, result in a
downgrading, withdrawal or qualification of the then-current ratings provided by
the Rating Agencies in respect to any Class of then outstanding Certificates
that is rated.
Notwithstanding the foregoing or any other provision of this
Agreement, with respect to the Brookdale Office Portfolio Loan Pair, it is
acknowledged and agreed that, so long as no Brookdale Office Control Appraisal
Event exists, the related Companion Holder may terminate the Special Servicer
and appoint the entity specified in the Brookdale Office Portfolio Intercreditor
Agreement as Special Servicer for the Brookdale Office Portfolio Loan Pair
within 90 days of the date of the Brookdale Office Portfolio Intercreditor
Agreement in accordance with and pursuant to this Section by notice given to the
Trustee and the applicable Master Servicer so long as (A) such appointment
occurs within 90 days after the date of the Brookdale Office Portfolio
Intercreditor Agreement, (B)(i) the replacement special servicer or an affiliate
thereof (a "Permitted Brookdale Office Portfolio Replacement Special Servicer"),
is on the S&P Select Servicer List as a U.S. Commercial Mortgage Special
Servicer, (ii) the Permitted Brookdale Office Portfolio Replacement Special
Servicer meets the criteria established by Xxxxx'x for approved special
servicers and (iii) the Permitted Brookdale Office Portfolio Replacement Special
Servicer is rated at least "CSS3" by Fitch; provided that if a Rating Agency
specified in clause (i), (ii) or (iii) is not then rating the Certificates, the
Permitted Brookdale Office Portfolio Replacement Special Servicer shall not be
required to meet the condition specified with respect to such Rating Agency and
(C) the Permitted Brookdale Office Portfolio Replacement Special Servicer shall
have (i) executed and delivered to the Trustee an assumption agreement assuming
the obligations of the Special Servicer with respect to the Brookdale Office
Portfolio Loan Pair from and after the date of the appointment, in the form
attached hereto as Exhibit X, and (ii) delivered an Opinion of Counsel (at the
expense of the Permitted Brookdale Office Portfolio Replacement Special
Servicer) to the effect that the designation of such Person as Special Servicer
with respect to the Brookdale Office Portfolio Loan Pair is in compliance with
the second paragraph of this Section 7.01(d), that upon the execution and
delivery of such assumption agreement such Person shall be bound by the terms of
this Agreement applicable following such assumption and that this Agreement
shall be enforceable against such Person in accordance with its terms following
such assumption.
(e) No penalty or fee shall be payable to the terminated Special
Servicer with respect to any termination pursuant to Section 7.01(d). All costs
and expenses of any such termination made without cause shall be paid by the
Holders of the Controlling Class.
(f) The applicable Master Servicer and Special Servicer shall, as
the case may be, from time to time, take all such reasonable actions as are
required by it in accordance with the related Servicing Standards in order to
prevent the Certificates from being placed on "watch" status or downgraded due
to servicing or special servicing, as applicable, concerns by any Rating Agency.
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time a Master Servicer or the Special Servicer, as the case may be, either
resigns pursuant to Subsection (a) of the first sentence of Section 6.04 or
receives a notice of termination for cause pursuant to Section 7.01(b), and
provided that no acceptable successor has been appointed within the time period
specified in Section 7.01(c), the Trustee shall be the successor to the
applicable Master Servicer or the Special Servicer, until such successor is
appointed by the Directing Certificateholder as provided in Section 7.01(c), as
applicable, in all respects in its capacity as a Master Servicer or Special
Servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to, and have the benefit of, all of the rights,
(subject to Section 3.11 and Section 6.03) benefits, responsibilities, duties,
liabilities and limitations on liability relating thereto and that arise
thereafter placed on or for the benefit of the Master Servicer or Special
Servicer by the terms and provisions hereof; provided, however, that any failure
to perform such duties or responsibilities caused by the terminated party's
failure under Section 7.01 to provide information or moneys required hereunder
shall not be considered a default by such successor hereunder. The appointment
of a successor Master Servicer shall not affect any liability of the predecessor
Master Servicer which may have arisen prior to its termination as Master
Servicer, and the appointment of a successor Special Servicer shall not affect
any liability of the predecessor Special Servicer which may have arisen prior to
its termination as Special Servicer. The Trustee in its capacity as successor to
the Master Servicer or the Special Servicer, as the case may be, shall not be
liable for any of the representations and warranties of such Master Servicer or
the Special Servicer, respectively, herein or in any related document or
agreement, for any acts or omissions of the predecessor Master Servicer or
Special Servicer or for any losses incurred by such Master Servicer pursuant to
Section 3.06 hereunder, nor shall the Trustee be required to purchase any
Mortgage Loan hereunder solely as a result of its obligations as successor
Master Servicer or Special Servicer, as the case may be. Subject to Section
3.11, as compensation therefor, the Trustee as successor Master Servicer shall
be entitled to the Servicing Fees and all fees relating to the Mortgage Loans
which such Master Servicer would have been entitled to if such Master Servicer
had continued to act hereunder, including but not limited to any income or other
benefit from any Permitted Investment pursuant to Section 3.06, and subject to
Section 3.11, the Trustee as successor to the Special Servicer shall be entitled
to the Special Servicing Fees to which the Special Servicer would have been
entitled if the Special Servicer had continued to act hereunder. Should the
Trustee succeed to the capacity of the Master Servicer or the Special Servicer,
as the case may be, the Trustee shall be afforded the same standard of care and
liability as such Master Servicer or the Special Servicer, as applicable,
hereunder notwithstanding anything in Section 8.01 to the contrary, but only
with respect to actions taken by it in its role as successor Master Servicer or
successor Special Servicer, as the case may be, and not with respect to its role
as Trustee hereunder. Notwithstanding the above, the Trustee may, if it shall be
unwilling to act as successor to the Master Servicer or Special Servicer, or
shall, if it is unable to so act, or if the Trustee is not approved as a
servicer by each Rating Agency, or if the Directing Certificateholder or the
Holders of Certificates entitled to at least 51% of the Voting Rights so request
in writing to the Trustee, promptly appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
which meets the criteria set forth in Section 6.04 and otherwise herein, as the
successor to the Master Servicer or the Special Servicer, as applicable,
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of such Master Servicer or Special Servicer hereunder. No
appointment of a successor to a Master Servicer or the Special Servicer
hereunder shall be effective until the assumption in writing by the successor to
the applicable Master Servicer or the Special Servicer of all its
responsibilities, duties and liabilities hereunder that arise thereafter and
upon Rating Agency confirmation, and which appointment has been approved by the
Directing Certificateholder, such approval not to be unreasonably withheld.
Pending appointment of a successor to a Master Servicer or the Special Servicer
hereunder, unless the Trustee shall be prohibited by law from so acting, the
Trustee shall act in such capacity as herein above provided. In connection with
such appointment and assumption of a successor to the applicable Master Servicer
or Special Servicer as described herein, the Trustee or the applicable Master
Servicer, as the case may be, may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation with respect to a successor
Master Servicer or successor Special Servicer, as the case may be, shall be in
excess of that permitted the terminated Master Servicer or Special Servicer, as
the case may be, hereunder. The Trustee, each Master Servicer or the Special
Servicer (whichever is not the terminated party) and such successor shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession. Any costs and expenses associated with the transfer of the
servicing function (other than with respect to a termination without cause)
under this Agreement shall be borne by the predecessor servicer.
Section 7.03 Notification to Certificateholders. (a) Upon any
resignation of any Master Servicer or the Special Servicer pursuant to Section
6.04, any termination of any Master Servicer or the Special Servicer pursuant to
Section 7.01 or any appointment of a successor to any Master Servicer or the
Special Servicer pursuant to Section 7.02, the Trustee shall give prompt written
notice thereof to Certificateholders at their respective addresses appearing in
the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five (5) days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and all
Certificateholders notice of such occurrence, unless such default shall have
been cured.
Section 7.04 Waiver of Events of Default. The Holders of
Certificates representing at least 66 2/3% of the Voting Rights allocated to
each Class of Certificates affected by any Event of Default hereunder may waive
such Event of Default within 20 days of the receipt of notice from the Trustee
of the occurrence of such Event of Default; provided, however, that an Event of
Default under clause (i) of Section 7.01(a) may be waived only by all of the
Certificateholders of the affected Classes. Upon any such waiver of an Event of
Default, such Event of Default shall cease to exist and shall be deemed to have
been remedied for every purpose hereunder. Upon any such waiver of an Event of
Default by Certificateholders, the Trustee shall be entitled to recover all
costs and expenses incurred by it in connection with enforcement action taken
with respect to such Event of Default prior to such waiver from the Trust Fund.
No such waiver shall extend to any subsequent or other Event of Default or
impair any right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
the same Voting Rights with respect to the matters described above as they would
if any other Person held such Certificates.
Section 7.05 Trustee as Maker of Advances. In the event that any
Master Servicer fails to fulfill its obligations hereunder to make any Advances
and such failure remains uncured, the Trustee shall perform such obligations (x)
within five Business Days following such failure by such Master Servicer with
respect to Servicing Advances resulting in an Event of Default under Section
7.01(a)(iii) hereof to the extent a Responsible Officer of the Trustee has
actual knowledge of such failure with respect to such Servicing Advances and (y)
by noon, New York City time, on the related Distribution Date with respect to
P&I Advances pursuant to the Trustee's notice of failure pursuant to Section
4.03(a) unless such failure has been cured. With respect to any such Advance
made by the Trustee, the Trustee shall succeed to all of the applicable Master
Servicer's rights with respect to Advances hereunder, including, without
limitation, such Master Servicer's rights of reimbursement and interest on each
Advance at the Reimbursement Rate, and rights to determine that a proposed
Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the case may
be, (without regard to any impairment of any such rights of reimbursement caused
by such Master Servicer's default in its obligations hereunder); provided,
however, that if Advances made by the Trustee and any Master Servicer shall at
any time be outstanding, or any interest on any Advance shall be accrued and
unpaid, all amounts available to repay such Advances and the interest thereon
hereunder shall be applied entirely to the Advances outstanding to the Trustee,
until such Advances shall have been repaid in full, together with all interest
accrued thereon, prior to reimbursement of such Master Servicer for such
Advances. The Trustee shall be entitled to conclusively rely on any notice given
with respect to a Nonrecoverable Advance hereunder.
[End of Article VII]
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee. (a) The Trustee, prior to the
occurrence of an Event of Default and after the curing or waiving of all Events
of Default which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. If an Event of
Default occurs and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Agreement, and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs. Any permissive right of the
Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall notify the party providing such instrument
and requesting the correction thereof. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor, any
Master Servicer or the Special Servicer or another Person, and accepted by the
Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct or bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement (unless a
higher percentage of Voting Rights is required for such action).
Section 8.02 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) The Trustee shall not be under any obligation to exercise any
of the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; the
Trustee shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) The Trustee shall not be liable for any action reasonably
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least 50% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee 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 not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity from
such requesting Holders against such expense or liability as a condition
to taking any such action. The reasonable expense of every such reasonable
examination shall be paid by the requesting Holders;
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, that the appointment of such agents or
attorneys shall not relieve the Trustee of its duties or obligations
hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(viii) The Trustee shall not be responsible for any act or omission
of any Master Servicer or the Special Servicer (unless the Trustee is
acting as a Master Servicer or Special Servicer, as the case may be in
which case the Trustee shall only be responsible for its own actions as a
Master Servicer or Special Servicer) or of the Depositor.
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates, other than the acknowledgments of the Trustee in Sections 2.02 and
2.05 and the signature, if any, of the Certificate Registrar and Authenticating
Agent set forth on any outstanding Certificate, shall be taken as the statements
of the Depositor, each Master Servicer or the Special Servicer, as the case may
be, and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Agreement or
of any Certificate (other than as to the signature, if any, of the Trustee set
forth thereon) or of any Mortgage Loan or related document. The Trustee shall
not be accountable for the use or application by the Depositor of any of the
Certificates issued to it or of the proceeds of such Certificates, or for the
use or application of any funds paid to the Depositor in respect of the
assignment of the Mortgage Loans to the Trust Fund, or any funds deposited in or
withdrawn from the applicable Certificate Account or any other account by or on
behalf of the Depositor, each Master Servicer, the Special Servicer or the
Trustee. The Trustee shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, any Master Servicer or the Special
Servicer and accepted by the Trustee, in good faith, pursuant to this Agreement.
Section 8.04 Trustee May Own Certificates. The Trustee in its
individual capacity, not as Trustee, may become the owner or pledgee of
Certificates, and may deal with the Depositor, each Master Servicer, the Special
Servicer, the Initial Purchaser and the Underwriters in banking transactions,
with the same rights it would have if it were not Trustee.
Section 8.05 Fees and Expenses of Trustee; Indemnification of
Trustee. (a) As compensation for the performance of their respective duties
hereunder, the Trustee will be paid the Trustee Fee, equal to the Trustee's
portion of one month's interest at the Trustee Fee Rate, which shall cover
recurring and otherwise reasonably anticipated expenses of the Trustee. The
Trustee Fee shall be paid monthly on a Mortgage Loan-by-Mortgage Loan basis. As
to each Mortgage Loan and REO Loan, the Trustee Fee shall accrue from time to
time at the Trustee's portion of Trustee Fee Rate and shall be computed on the
basis of the Stated Principal Balance of such Mortgage Loan and a 360-day year
consisting of twelve 30-day months. The Trustee Fee (which shall not be limited
to any provision of law in regard to the compensation of a Trustee of an express
trust) shall constitute the Trustee's sole form of compensation for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties of the Trustee hereunder. No
Trustee Fee shall be payable with respect to the Companion Loans.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to be indemnified and held harmless by the Trust Fund
(to the extent of amounts on deposit in the Certificate Accounts or Lower-Tier
Distribution Account from time to time) against any loss, liability or expense
(including, without limitation, costs and expenses of litigation, and of
investigation, counsel fees, damages, judgments and amounts paid in settlement,
and expenses incurred in becoming successor master servicer or successor special
servicer, to the extent not otherwise paid hereunder) arising out of, or
incurred in connection with, any act or omission of the Trustee relating to the
exercise and performance of any of the powers and duties of the Trustee
hereunder; provided, however, that Trustee shall not be entitled to
indemnification pursuant to this Section 8.05(b) for (i) allocable overhead,
(ii) expenses or disbursements incurred or made by or on behalf of the Trustee
in the normal course of the Trustee performing its duties in accordance with any
of the provisions hereof, which are not "unanticipated expenses of the REMIC"
within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii), (iii) any
expense or liability specifically required to be borne thereby pursuant to the
terms hereof or (iv) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of the Trustee's
obligations and duties hereunder, or by reason of negligent disregard of such
obligations or duties, or as may arise from a breach of any representation,
warranty or covenant of the Trustee made herein. The provisions of this Section
8.05(b) shall survive the termination of this Agreement and any resignation or
removal of the Trustee and appointment of a successor thereto.
Section 8.06 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be, and will be required to resign if it fails to
be, (i) a corporation, national bank, national banking association or a trust
company, organized and doing business under the laws of any state or the United
States of America, authorized under such laws to exercise corporate trust powers
and to accept the trust conferred under this Agreement, having a combined
capital and surplus of at least $100,000,000 and subject to supervision or
examination by federal or state authority and shall not be an Affiliate of any
Master Servicer or the Special Servicer (except during any period when the
Trustee is acting as, or has become successor to, any Master Servicer or the
Special Servicer, as the case may be, pursuant to Section 7.02), (ii) an
institution insured by the Federal Deposit Insurance Corporation and (iii) an
institution whose long-term senior unsecured debt is rated at least "A+" by S&P,
"Aa3" by Xxxxx'x or "AA-" by Fitch (or such entity as would not, as evidenced in
writing by such Rating Agency, result in the qualification, downgrading or
withdrawal of any of the ratings then assigned thereby to the Certificates).
Notwithstanding the foregoing, if the Trustee meets the provisions
of (i) and (ii) above, but does not meet the provisions of (iii) above, the
Trustee shall be deemed to meet the provisions of (iii) if it appoints a fiscal
agent as a back-up liquidity provider, provided that such fiscal agent shall
have a long-term senior unsecured debt rating of at least "AA-" by S&P, "Aa3" by
Xxxxx'x or "AA-" by Fitch.
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Trustee administers
the Upper-Tier REMIC and the Lower-Tier REMIC or in which the Trustee's office
is located is in a state or local jurisdiction that imposes a tax on the Trust
Fund on the net income of a REMIC (other than a tax corresponding to a tax
imposed under the REMIC Provisions), the Trustee shall elect either to (i)
resign immediately in the manner and with the effect specified in Section 8.07,
(ii) pay such tax at no expense to the Trust or (iii) administer the Upper-Tier
REMIC and the Lower-Tier REMIC from a state and local jurisdiction that does not
impose such a tax.
Section 8.07 Resignation and Removal of the Trustee. (a) The Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Depositor, each Master Servicer, the
Special Servicer, the Swap Counterparty and the Trustee and to all
Certificateholders. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor trustee acceptable to each Master Servicer
and the Directing Certificateholder 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 each Master Servicer,
the Special Servicer, the Certificateholders, the Swap Counterparty and the
Trustee by the Depositor. If no successor trustee 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.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or any Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee shall fail (other than by reason of the failure
of either the applicable Master Servicer or the Special Servicer to timely
perform its obligations hereunder or as a result of other circumstances beyond
the Trustee's reasonable control), to timely publish any report to be delivered,
published or otherwise made available by the Trustee pursuant to Section 4.02
and such failure shall continue unremedied for a period of five days, or if the
Trustee fails to make distributions required pursuant to Sections 3.05(c), 4.01
or 9.01, then the Depositor may remove the Trustee and appoint a successor
Trustee acceptable to each Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor Trustee in the case of the removal of the Trustee. A copy of such
instrument shall be delivered to each Master Servicer, the Special Servicer and
the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor Trustee
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 each Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor so appointed. A copy of such
instrument shall be delivered to the Depositor, the Special Servicer and the
remaining Certificateholders by each Master Servicer.
(d) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 8.08.
Upon any succession of a Trustee under this Agreement, the
predecessor Trustee shall be entitled to the payment of accrued and unpaid
compensation and reimbursement as provided for under this Agreement for services
rendered and expenses incurred (including without limitation, unreimbursed
Advances). No Trustee shall be personally liable for any action or omission of
any successor Trustee.
Section 8.08 Successor Trustee. (a) Any successor Trustee appointed
as provided in Section 8.07 shall execute, acknowledge and deliver to the
Depositor, each Master Servicer, the Special Servicer and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor Trustee 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
herein. The predecessor Trustee shall deliver to the successor Trustee all
Mortgage Files and related documents and statements held by it hereunder (other
than any Mortgage Files at the time held on its behalf by a Custodian, which
Custodian, at Custodian's option shall become the agent of the successor
Trustee), and the Depositor, each Master Servicer, the Special Servicer and the
predecessor Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and certainly vest and
confirm in the successor Trustee all such rights, powers, duties and
obligations, and to enable the successor Trustee to perform its obligations
hereunder.
(b) No successor Trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor Trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor Trustee as
provided in this Section 8.08, the Trustee shall mail notice of the succession
of such Trustee to the Depositor and the Certificateholders.
Section 8.09 Merger or Consolidation of Trustee. Any Person into
which the Trustee may be merged or converted or with which it may be
consolidated or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
all or substantially all of the corporate trust business of the Trustee shall be
the successor of the Trustee hereunder; provided, that, in the case of the
Trustee, such successor Person shall be eligible under the provisions of Section
8.06, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding. The Trustee will provide notice of such event to each Master
Servicer, the Special Servicer, the Depositor and the Rating Agencies.
Section 8.10 Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing the same may at the time be located, the Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons approved by the Trustee to act as co-trustee or co-trustees,
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity, such title to the Trust Fund, or any part thereof, and, subject to the
other provisions of this Section 8.10, such powers, duties, obligations, rights
and trusts as the Master Servicer and the Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 8.06 hereunder and
no notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 8.08 hereof. All co-trustee
fees shall be payable out of the Trust Fund.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to any Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate Trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate Trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor Trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians. The Trustee may appoint one
or more Custodians to hold all or a portion of the Mortgage Files as agent for
the Trustee. Each Custodian shall be a depository institution subject to
supervision by federal or state authority, shall have combined capital and
surplus of at least $15,000,000 and shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor
or any Affiliate of the Depositor. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Trustee hereunder in
connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all acts
and omissions of any Custodian. Any Custodian appointed hereunder must maintain
a fidelity bond and errors and omissions policy in an amount customary for
Custodians which serve in such capacity in commercial mortgage loan
securitization transactions.
Section 8.12 Access to Certain Information. (a) On or prior to the
date of the first sale of any Non-Registered Certificate to an Independent third
party, the Depositor shall provide to the Trustee three copies of any private
placement memorandum or other disclosure document used by the Depositor or its
Affiliate in connection with the offer and sale of the Class of Certificates to
which such Non-Registered Certificate relates. In addition, if any such private
placement memorandum or disclosure document is revised, amended or supplemented
at any time following the delivery thereof to the Trustee, the Depositor
promptly shall inform the Trustee of such event and shall deliver to the Trustee
a copy of the private placement memorandum or disclosure document, as revised,
amended or supplemented. The Trustee shall maintain at its offices primarily
responsible for administering the Trust Fund and shall, upon reasonable advance
notice, make available during normal business hours for review by any Holder of
a Certificate, the Depositor, each Master Servicer, the Special Servicer, any
Rating Agency or any other Person to whom the Trustee believes such disclosure
is appropriate, originals or copies of the following items: (i) in the case of a
Holder or prospective transferee of a Non-Registered Certificate, any private
placement memorandum or other disclosure document relating to the Class of
Certificates to which such Non-Registered Certificate belongs, in the form most
recently provided to the Trustee and (ii) in all cases (a) this Agreement and
any amendments hereto entered into pursuant to Section 11.01, (b) all statements
required to be delivered to Certificateholders of the relevant Class pursuant to
Section 4.02 since the Closing Date, (c) all Officer's Certificates delivered to
the Trustee since the Closing Date pursuant to Section 3.13, (d) all
accountants' reports delivered to the Trustee since the Closing Date pursuant to
Section 3.14, (e) any inspection report prepared by any Master Servicer,
Sub-Servicer or Special Servicer, as applicable, and delivered to the Trustee
and the applicable Master Servicer in respect of each Mortgaged Property
pursuant to Section 3.12(a), (f) as to each Mortgage Loan and Companion Loan
pursuant to which the related Mortgagor is required to deliver such items or the
Special Servicer has otherwise acquired such items, the most recent annual
operating statement and rent roll of the related Mortgaged Property and
financial statements of the related Mortgagor and any other reports of the
Mortgagor collected by the applicable Master Servicer, Sub-Servicer or Special
Servicer, as applicable, and delivered to the Trustee pursuant to Section
3.12(c), together with the accompanying written reports to be prepared by the
Special Servicer and delivered to the Trustee pursuant to Section 3.12(b), (g)
any and all notices, reports and Environmental Assessments delivered to the
Trustee with respect to any Mortgaged Property securing a Defaulted Mortgage
Loan and Companion Loan as to which the environmental testing contemplated by
Section 3.09(c) revealed that either of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof was not satisfied (but only for so long
as such Mortgaged Property or the related Mortgage Loan are part of the Trust
Fund), (h) any and all modifications, waivers and amendments of the terms of a
Mortgage Loan and Companion Loan entered into by the applicable Master Servicer
or the Special Servicer and delivered to the Trustee pursuant to Section 3.20
(but only for so long as the affected Mortgage Loan and Companion Loan is part
of the Trust Fund), (i) any and all Officer's Certificates delivered to the
Trustee to support the applicable Master Servicer's determination that any P&I
Advance or Servicing Advance was or, if made, would be a Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance, as the case may be, (j) any and all
of the Mortgage Loan and Companion Loan documents contained in the Mortgage
File, (k) any and all Appraisals obtained pursuant to the definition of
"Appraisal Reduction" herein, (l) information regarding the occurrence of
Servicing Transfer Events as to the Mortgage Loans and (m) any and all
Sub-Servicing Agreements and any amendments thereto and modifications thereof.
Copies of any and all of the foregoing items will be available from the Trustee
upon request; provided, however, that the Trustee shall be permitted to require
payment of a sum sufficient to cover the reasonable costs and expenses of
providing such copies, except in the case of copies provided to the Directing
Certificateholder or the Rating Agencies, which shall be free of charge (except
for extraordinary or duplicate requests). In addition, without limiting the
generality of the foregoing, any Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class Q and Class NR Certificateholder may upon request from
the Trustee obtain a copy of any factual report (other than the Asset Status
Report) delivered to the Rating Agencies under this Agreement. Any holder of the
Class HG-1, Class HG-2, Class HG-3, Class HG-4, Class HG-5 or Class HG-X
Certificates may, with respect to the Houston Galleria Whole Loan, upon request
to the Trustee obtain a copy of any factual report (other than the Asset Status
Report) delivered to the Rating Agencies under this Agreement.
(b) The Trustee shall make available to certain financial market
publishers, which initially shall be Bloomberg, L.P., Xxxxx, LLC and Intex
Solutions LLC on a monthly basis all CMSA reports and any other reports required
to be delivered by the Trustee pursuant to Article IV hereof. If any such
information is provided on or before March 28, 2005, the Trustee shall make the
Prospectus available to Bloomberg, L.P., Xxxxx, LLC and Intex Solutions, Inc.
(c) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Trustee shall, in accordance with such reasonable rules and procedures as each
may adopt (which may include the requirement that an agreement that provides
that such information shall be used solely for purposes of evaluating the
investment characteristics of the Certificates be executed), also provide the
reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Trustee, to any
Certificateholder, the Underwriters, the Placement Agents, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided that the
Trustee, as the case may be, shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(d) With respect to any information furnished by the Trustee
pursuant to this Section 8.12, the Trustee shall be entitled to indicate the
source of such information and the Trustee may affix thereto any disclaimer it
deems appropriate in its discretion. The Trustee shall notify Certificateholders
of the availability of any such information in any manner as it, in its sole
discretion, may determine. In connection with providing access to or copies of
the items described in the preceding paragraph, the Trustee may require (a) in
the case of Certificate Owners, a confirmation executed by the requesting Person
substantially in form and substance reasonably acceptable to the Trustee, as
applicable, generally to the effect that such Person is a beneficial holder of
Certificates, is requesting the information solely for use in evaluating such
Person's investment in the Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person in form and substance reasonably acceptable to
the Trustee, generally to the effect that such Person is a prospective purchaser
of a Certificate or an interest therein, is requesting the information solely
for use in evaluating a possible investment in Certificates and will otherwise
keep such information confidential. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.
Section 8.13 Representations and Warranties of the Trustee.
The Trustee hereby represents and warrants to the Depositor, the
Master Servicers and the Special Servicer and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter and by-laws or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
national banking associations specifically and (b) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee; and
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee;
(b) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this Agreement or
the consummation of the transactions contemplated by this Agreement, except for
any consent, approval, authorization or order which has not been obtained or
cannot be obtained prior to the actual performance by the Trustee of its
obligations under this Agreement, and which, if not obtained would not have a
materially adverse effect on the ability of the Trustee to perform its
obligations hereunder.
[End of Article VIII]
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans. Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Trustee, the
Depositor, the Master Servicers, the Special Servicer the Trustee (other than
the obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by the
Trustee and required hereunder to be so paid on the Distribution Date following
the earlier to occur of (i) the final payment (or related Advance) or other
liquidation of the last Mortgage Loan or REO Property subject thereto or (ii)
the purchase or other liquidation by the Holders of the majority of the
Controlling Class, the Special Servicer, any Master Servicer or the Holders of
the Class LR Certificates, in that order of priority, of all the Mortgage Loans
and the Trust Fund's portion of each REO Property remaining in the Trust Fund at
a price equal to (a) the sum of (1) the aggregate Purchase Price of all the
Mortgage Loans (exclusive of REO Loans) included in the Trust Fund, (2) the
Appraised Value of the Trust Fund's portion of each REO Property, if any,
included in the Trust Fund (such Appraisals in clause (a)(2) to be conducted by
an Independent MAI-designated appraiser selected and mutually agreed upon by the
applicable Master Servicer and the Trustee, and approved by more than 50% of the
Voting Rights of the Classes of Certificates then outstanding (other than the
Controlling Class unless the Controlling Class is the only Class of Certificates
then outstanding)) (which approval shall be deemed given unless more than 50% of
such Certificateholders object within 20 days of receipt of notice thereof) and
(3) the reasonable out-of-pocket expenses of each Master Servicer with respect
to such termination, unless the Master Servicer is the purchaser of such
Mortgage Loans, minus (b) solely in the case where a Master Servicer is
effecting such purchase, the aggregate amount of unreimbursed Advances, together
with any interest accrued and payable to such Master Servicer in respect of such
Advances in accordance with Sections 3.03(d) and 4.03(d) and any unpaid
Servicing Fees, remaining outstanding (which items shall be deemed to have been
paid or reimbursed to such Master Servicer in connection with such purchase) and
(iii) exchange by the Sole Certificateholder pursuant to the terms of the
immediately succeeding paragraph, the final payment or other liquidation (or any
advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in the Trust Fund; provided, however, that in no event shall the trust
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of
the United States to the Court of St. James's, living on the date hereof.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder shall have the right to exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and the Trust Fund's portion of each REO Property remaining in the Trust
Fund as contemplated by clause (iii) of the first paragraph of this Section 9.01
by giving written notice to all the parties hereto no later than 60 days prior
to the anticipated date of exchange. In the event that the Sole
Certificateholder elects to exchange all of its Certificates (other than the
Class S and the Residual Certificates) for all of the Mortgage Loans and the
Trust Fund's portion of each REO Property remaining in the Trust in accordance
with the preceding sentence, such Sole Certificateholder, not later than the
Distribution Date on which the final distribution on the Certificates is to
occur, shall deposit in the Certificate Accounts an amount in immediately
available funds equal to all amounts due and owing to the Depositor, the Master
Servicers, the Special Servicer and the Trustee hereunder through the date of
the liquidation of the Trust Fund that may be withdrawn from the Certificate
Account, or an escrow account acceptable to the respective parties hereto,
pursuant to Section 3.05(a) or that may be withdrawn from the Distribution
Account pursuant to Section 3.05(a), but only to the extent that such amounts
are not already on deposit in the Certificate Account. In addition, each Master
Servicer shall transfer all amounts required to be transferred to the Lower-Tier
Distribution Account on the P&I Advance Date related to such Distribution Date
in which the final distribution on the Certificates is to occur from the
Certificate Account pursuant to the first paragraph of Section 3.04(b). Upon
confirmation that such final deposits have been made and following the surrender
of all its Certificates (other than the Class S and the Residual Certificates)
on the final Distribution Date, the Trustee shall, upon receipt of a Request for
Release from each Master Servicer, release or cause to be released to the Sole
Certificateholder or any designee thereof, the Mortgage Files for the remaining
Mortgage Loans and shall execute all assignments, endorsements and other
instruments furnished to it by the Sole Certificateholder as shall be necessary
to effectuate transfer of the Mortgage Loans and REO Properties remaining in the
Trust Fund, and the Trust Fund shall be liquidated in accordance with Section
9.02. Such transfers shall be subject to any rights of any Sub-Servicers to
service or perform select servicing functions with respect to the Mortgage
Loans. Solely for federal income tax purposes, the Sole Certificateholder shall
be deemed to have purchased the assets of the Lower-Tier REMIC for an amount
equal to the remaining Certificate Balance of its Certificates (other than the
Class S and the Residual Certificates), plus accrued, unpaid interest with
respect thereto, and the Trustee shall credit such amounts against amounts
distributable in respect of such Certificates and Related Uncertificated
Lower-Tier Interests.
The obligations and responsibilities under this Agreement of the
Depositor, the Master Servicers, the Special Servicer, the Trustee and the
applicable Companion Paying Agent shall terminate with respect to any Companion
Loan to the extent (i) its related AB Mortgage Loan has been paid in full or is
no longer part of the Trust Fund, (ii) the Houston Galleria Loan and the Houston
Galleria Non-Trust Subordinate Companion Loan have been paid in full or are no
longer part of the Trust Fund and (ii) no amounts payable by the related
Companion Holder to or for the benefit of the Trust or any party hereto in
accordance with the related Intercreditor Agreement remain due and owing.
The Holders of the majority of the Controlling Class, the Special
Servicer, each Master Servicer or the Holders of the Class LR Certificates, in
that order of priority, may, at their option, elect to purchase all of the
Mortgage Loans (and all property acquired through exercise of remedies in
respect of any Mortgage Loan) and the Trust Fund's portion of each REO Property
remaining in the Trust Fund as contemplated by clause (i) of the preceding
paragraph by giving written notice to the Trustee and the other parties hereto
no later than 60 days prior to the anticipated date of purchase; provided,
however, that each Master Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates may so elect to
purchase all of the Mortgage Loans and the Trust Fund's portion of each REO
Property remaining in the Trust Fund only on or after the first Distribution
Date on which the aggregate Stated Principal Balances of the Mortgage Loans and
the Trust Fund's portion of any REO Loans remaining in the Trust Fund is less
than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage Loans
set forth in the Preliminary Statement. In the event that any Master Servicer,
the Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates purchases all of the Mortgage Loans and the Trust Fund's
portion of each REO Property remaining in the Trust Fund in accordance with the
preceding sentence, such Master Servicer, the Special Servicer, the Holders of
the Controlling Class or the Holders of the Class LR Certificates, as
applicable, shall deposit in the Lower-Tier Distribution Account not later than
the P&I Advance Date relating to the Distribution Date on which the final
distribution on the Certificates is to occur, an amount in immediately available
funds equal to the above-described purchase price (exclusive of any portion
thereof payable to any Person other than the Certificateholders pursuant to
Section 3.05(a), which portion shall be deposited in the Certificate Account).
In addition, the applicable Master Servicer shall transfer to the Lower-Tier
Distribution Account all amounts required to be transferred thereto on such P&I
Advance Date from the Certificate Account pursuant to the first paragraph of
Section 3.04(b), together with any other amounts on deposit in the Certificate
Account that would otherwise be held for future distribution and, without
duplication, pay to the Swap Counterparty any Class A-2FL Net Swap Payment as
required by the penultimate paragraph of Section 3.04(b). Upon confirmation that
such final deposits and payments have been made, the Trustee shall release or
cause to be released to the applicable Master Servicer, the Special Servicer,
the Holders of the Controlling Class or the Holders of the Class LR
Certificates, as applicable, the Mortgage Files for the remaining Mortgage Loans
and shall execute all assignments, endorsements and other instruments furnished
to it by such Master Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates, as applicable, as
shall be necessary to effectuate transfer of the Mortgage Loans and REO
Properties remaining in the Trust Fund.
For purposes of this Section 9.01, the Holders of the majority of
the Controlling Class shall have the first option to terminate the Trust Fund,
then the Special Servicer, then each Master Servicer, and then the Holders of
the Class LR Certificates. For purposes of this Section 9.01, the Directing
Certificateholder, with the consent of the Holders of the Controlling Class,
shall act on behalf of the Holders of the Controlling Class in purchasing the
assets of the Trust Fund and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Trustee by letter to the Certificateholders, the Swap
Counterparty and each Rating Agency and, if not previously notified pursuant to
this Section 9.01, to the other parties hereto mailed (a) in the event such
notice is given in connection with the purchase of all of the Mortgage Loans and
each REO Property remaining in the Trust Fund, not earlier than the 15th day and
not later than the 25th day of the month next preceding the month of the final
distribution on the Certificates, or (b) otherwise during the month of such
final distribution on or before the P&I Advance Determination Date in such
month, in each case specifying (i) the Distribution Date upon which the Trust
Fund will terminate and final payment of the Certificates will be made, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the offices of the
Certificate Registrar or such other location therein designated.
After transferring the Lower-Tier Distribution Amount and the amount
of any Yield Maintenance Charges distributable pursuant to Section 4.01(d) to
the Upper-Tier Distribution Account (and with respect to any amounts payable to
the Class A-2FL Regular Interest, from the Upper-Tier Distribution Account to
the Floating Rate Account), in each case pursuant to Section 3.04(b), and upon
presentation and surrender of the Certificates by the Certificateholders on the
final Distribution Date, the Trustee shall distribute to each Certificateholder
so presenting and surrendering its Certificates such Certificateholder's
Percentage Interest of that portion of the amounts then on deposit in the
Upper-Tier Distribution Account (or, in the case of the Class A-2FL
Certificates, amounts then on deposit in the Floating Rate Account after payment
of any Class A-2FL Net Swap Payment to the Swap Counterparty, as specified in
Section 4.01(k)) that are allocable to payments on the Class of Certificates so
presented and surrendered and to the Holders of the Class S Certificates any
amounts remaining on deposit in the Excess Interest Distribution Account.
Amounts transferred from the Lower-Tier Distribution Account to the Upper-Tier
Distribution Account as of the final Distribution Date (exclusive of any portion
of such amounts payable or reimbursable to any Person pursuant to clause (ii) of
Section 3.05(e)) shall be allocated for these purposes, in the amounts and in
accordance with the priority set forth in Sections 4.01(b), 4.01(d) and 4.01(e)
and shall be distributed in termination and liquidation of the Uncertificated
Lower-Tier Interests and the Class LR Certificates in accordance with Sections
4.01(b), 4.01(d) and 4.01(e). Any funds not distributed on such Distribution
Date shall be set aside and held uninvested in trust for the benefit of the
Certificateholders not presenting and surrendering their Certificates in the
aforesaid manner and shall be disposed of in accordance with this Section 9.01
and Section 4.01(g).
Section 9.02 Additional Termination Requirements. (a) In the event
any Master Servicer, the Special Servicer, the Holders of the Controlling Class
or the Holders of the Class LR Certificates purchases all of the Mortgage Loans
and the Trust Fund's portion of each REO Property remaining in the Trust Fund as
provided in Section 9.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, which meet the definition of a "qualified
liquidation" in Section 860F(a)(4) of the Code:
(i) the Trustee shall specify the date of adoption of the plan of
complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the
Upper-Tier REMIC's and the Lower-Tier REMIC's final Tax Return pursuant to
Treasury Regulations Section 1.860F-1;
(ii) during the 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Trustee
shall sell all of the assets of the Trust Fund to the applicable Master
Servicer, the Special Servicer, the Holders of the Controlling Class or
the Holders of the Class LR Certificates, as applicable, for cash; and
(iii) within such 90-day liquidation period and immediately
following the making of the final payment on the Uncertificated Lower-Tier
Interests and the Certificates, the Trustee shall distribute or credit, or
cause to be distributed or credited, to the Holders of the Class LR
Certificates (in the case of the Lower-Tier REMIC) and the Class R
Certificates (in the case of the Upper-Tier REMIC) all cash on hand (other
than cash retained to meet claims), and the Trust Fund and each of the
Lower-Tier REMIC and the Upper-Tier REMIC shall terminate at that time.
(b) In the event the Trust Fund is to be terminated while the Swap
Contract is still in effect, the Trustee shall promptly notify the Swap
Counterparty in writing of the date on which the Trust Fund is to be terminated
and that the notional amount of the Swap Contract will be reduced to zero on
such date. Based on the date of termination, the Trustee shall calculate the
Class A-2FL Net Swap Payment, if any, as specified in Section 3.32, and prior to
any final distributions to the Holders of the Class A-2FL Certificates pursuant
to Section 9.01, shall pay such Class A-2FL Net Swap Payment, if any, to the
Swap Counterparty. In the event that any fees (including termination fees) are
payable to the Swap Counterparty in connection with such termination, such fees
will be payable to the Swap Counterparty solely from amounts remaining in the
Floating Rate Account after all distributions to the Class A-2FL Certificates
are made pursuant to Section 9.01.
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration. (a) The Trustee shall make
elections or cause elections to be made to treat each of the Lower-Tier REMIC
and the Upper-Tier REMIC as a REMIC under the Code and, if necessary, under
Applicable State and Local Tax Law. Each such election will be made on Form 1066
or other appropriate federal tax return for the taxable year ending on the last
day of the calendar year in which the Uncertificated Lower-Tier Interests and
the Certificates are issued. For the purposes of the REMIC election in respect
of the Upper-Tier REMIC, each Class of the Regular Certificates (other than the
Class A-2FL Certificates) and the Class A-2FL Regular Interest shall be
designated as the "regular interests" and the Class R Certificates shall be
designated as the sole class of "residual interests" in the Upper-Tier REMIC.
For purposes of the REMIC election in respect of the Lower-Tier REMIC, each
Class of Uncertificated Lower-Tier Interests shall be designated as the "regular
interests" and the Class LR Certificates shall be designated as the sole class
of "residual interests" in the Lower-Tier REMIC. None of the Special Servicer,
the Master Servicers nor the Trustee shall permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in the Lower-Tier
REMIC or the Upper-Tier REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of
each of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of
Section 860G(a)(9) of the Code.
(c) The Trustee shall act on behalf of each REMIC in relation to any
tax matter or controversy involving any REMIC and shall represent each REMIC in
any administrative or judicial proceeding relating to an examination or audit by
any governmental taxing authority with respect thereto. The legal expenses,
including without limitation attorneys' or accountants' fees, and costs of any
such proceeding and any liability resulting therefrom shall be expenses of the
Trust Fund and the Trustee shall be entitled to reimbursement therefor out of
amounts attributable to the Mortgage Loans and any REO Properties on deposit in
the Certificate Account as provided by Section 3.05(a) unless such legal
expenses and costs are incurred by reason of the Trustee's willful misfeasance,
bad faith or gross negligence. The Holder of the largest Percentage Interest in
each of the (i) Class R and (ii) Class LR Certificates shall be designated, in
the manner provided under Treasury Regulations Section 1.860F-4(d) and temporary
Treasury Regulations Section 301.6231(a)(7)-1T, as the "tax matters person" of
the (i) Upper-Tier REMIC and (ii) the Lower-Tier REMIC, respectively. By their
acceptance thereof, the Holders of the largest Percentage Interest in each of
the (i) Class R and (ii) Class LR Certificates hereby agrees to irrevocably
appoint the Trustee as their agent to perform all of the duties of the "tax
matters person" for the (i) Upper-Tier REMIC and (ii) the Lower-Tier REMIC,
respectively.
(d) The Trustee shall prepare or cause to be prepared and shall
file, or cause to be filed, all of the Tax Returns that it determines are
required with respect to each of the Lower-Tier REMIC and the Upper-Tier REMIC
created hereunder, and shall cause the Trustee to sign such Tax Returns in a
timely manner. The ordinary expenses of preparing such returns shall be borne by
the Trustee without any right of reimbursement therefor. The Trustee agrees to
indemnify and hold harmless the Trustee with respect to any tax or liability
arising from the Trustee's signing of Tax Returns that contain errors or
omissions, if such errors or omissions are caused by the negligence, bad faith
or willful misconduct of the Trustee.
(e) The Trustee shall provide or cause to be provided (i) to any
Transferor of a Class R Certificate or Class LR Certificate such information as
is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent,
(ii) to the Certificateholders such information or reports as are required by
the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service on Form 8811, within 30
days after the Closing Date, the name, title, address and telephone number of
the "tax matters person" who will serve as the representative of each of the
Lower-Tier REMIC and the Upper-Tier REMIC created hereunder.
(f) The Trustee shall take such actions and shall cause the Trust
Fund to take such actions as are reasonably within the Trustee's control and the
scope of its duties more specifically set forth herein as shall be necessary to
maintain the status of each of the Lower-Tier REMIC and the Upper-Tier REMIC as
a REMIC under the REMIC Provisions. Neither the Master Servicers nor the Special
Servicer shall knowingly or intentionally take any action, cause the Trust Fund
to take any action or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, could (i) endanger the status of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or (ii) result in the imposition of a tax upon the
Lower-Tier REMIC or the Upper-Tier REMIC or the Trust Fund (including but not
limited to the tax on "prohibited transactions" as defined in Section 860F(a)(2)
of the Code and the tax on contributions to a REMIC set forth in Section 860G(d)
of the Code, but not including the tax on "net income from foreclosure
property") (either such event an "Adverse REMIC Event") unless the Trustee
receives an Opinion of Counsel (at the expense of the party seeking to take such
action or, if such party fails to pay such expense, and the Trustee determines
that taking such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of the Trustee) to the effect that the contemplated action will not,
with respect to the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC
created hereunder, endanger such status or, unless the Trustee determines in its
sole discretion to indemnify the Trust Fund against such tax, result in the
imposition of such a tax (not including a tax on "net income from foreclosure
property"). The Trustee shall not take or fail to take any action (whether or
not authorized hereunder) as to which the Trustee has received an Opinion of
Counsel to the effect that an Adverse REMIC Event could occur with respect to
such action or inaction. In addition, prior to taking any action with respect to
the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC or any of their
respective assets, or causing the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC to take any action, which is not expressly permitted under the
terms of this Agreement, the Trustee will determine whether such action could
cause an Adverse REMIC Event to occur with respect to the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC and the Trustee shall not take any
action or cause the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC to
take any such action as to which it has determined that an Adverse REMIC Event
could occur. The Trustee may consult with counsel to make such decision, and the
cost of same shall be borne by the party seeking to take the action not
expressly permitted by this Agreement, but in no event at the expense of the
Trustee. At all times as may be required by the Code, the Trustee will to the
extent within its control and the scope of its duties more specifically set
forth herein, maintain substantially all of the assets of each of the Lower-Tier
REMIC and the Upper-Tier REMIC as "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on the Lower-Tier REMIC or the Upper-Tier REMIC, such tax shall
be charged against amounts otherwise distributable to the Holders of the
Certificates, except as provided in the last sentence of this Section 10.01(g);
provided that with respect to the estimated amount of tax imposed on any "net
income from foreclosure property" pursuant to Section 860G(c) of the Code or any
similar tax imposed by a state or local tax authority, the Special Servicer
shall retain in the related REO Account a reserve for the payment of such taxes
in such amounts and at such times as it shall deem appropriate (or as advised by
the Trustee in writing), and shall remit to the applicable Master Servicer such
reserved amounts as such Master Servicer shall request in order to pay such
taxes. Except as provided in the preceding sentence, the applicable Master
Servicer shall withdraw from the applicable Certificate Account sufficient funds
to pay or provide for the payment of, and to actually pay, such tax as is
estimated to be legally owed by the Lower-Tier REMIC or the Upper-Tier REMIC
(but such authorization shall not prevent the Trustee from contesting, at the
expense of the Trust Fund (other than as a consequence of a breach of its
obligations under this Agreement), any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The Trustee is hereby authorized to and shall segregate, into
a separate non-interest bearing account, the net income from any "prohibited
transaction" under Section 860F(a) of the Code or the amount of any taxable
contribution to the Lower-Tier REMIC or the Upper-Tier REMIC after the Startup
Day that is subject to tax under Section 860G(d) of the Code and use such income
or amount, to the extent necessary, to pay such prohibited transactions tax. To
the extent that any such tax (other than any such tax paid in respect of "net
income from foreclosure property") is paid to the Internal Revenue Service or
applicable state or local tax authorities, the Trustee shall retain an equal
amount from future amounts otherwise distributable to the Holders of Residual
Certificates (as applicable) and shall distribute such retained amounts, (x) in
the case of the Uncertificated Lower-Tier REMIC Interests, to the Upper-Tier
REMIC to the extent they are fully reimbursed for any Collateral Support Deficit
or Houston Galleria Collateral Support Deficit arising therefrom and then to the
Holders of the Class LR Certificates in the manner specified in Section 4.01(b)
and (y) in the case of the Upper-Tier REMIC, to the Holders of Class A (other
than Class A-2FL), Class A-M, Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P, Class Q, Class NR, Class X-1 and Class X-2 Certificates and the Class
A-2FL Regular Interest, as applicable, or the Class HG-X, Class HG-1, Class
HG-2, Class HG-3, Class HG-4 and Class HG-5 Certificates, in the manner
specified in Section 4.01(a), to the extent they are fully reimbursed for any
Collateral Support Deficit or Houston Galleria Collateral Support Deficit,
arising therefrom and then to the Holders of the Class R Certificates. None of
the Trustee, the Master Servicers or the Special Servicer shall be responsible
for any taxes imposed on the Lower-Tier REMIC or the Upper-Tier REMIC except to
the extent such taxes arise as a consequence of a breach of their respective
obligations under this Agreement which breach constitutes willful misfeasance,
bad faith, or negligence by such party.
(h) The Trustee shall, for federal income tax purposes, maintain or
cause to be maintained books and records with respect to each of the Lower-Tier
REMIC and the Upper-Tier REMIC on a calendar year and on an accrual basis or as
otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, the Trustee shall not accept any
contributions of assets to the Lower-Tier REMIC and the Upper-Tier REMIC unless
the Trustee shall have received an Opinion of Counsel (at the expense of the
party seeking to make such contribution) to the effect that the inclusion of
such assets in the Lower-Tier REMIC or the Upper-Tier REMIC will not (i) cause
the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC at
any time that any Uncertificated Lower-Tier Interests or Certificates are
outstanding or (ii) subject any of the Trust Fund or the Lower-Tier REMIC or the
Upper-Tier REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(j) The Trustee shall not enter into any arrangement by which the
Trust Fund or the Lower-Tier REMIC or the Upper-Tier REMIC will receive a fee or
other compensation for services nor permit the Trust Fund or the Lower-Tier
REMIC or the Upper-Tier REMIC to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" by which the
Certificate Balance or Notional Amount of the Class A-2FL Regular Interest and
each Class of Certificates (other than the Class X-2 Certificates) representing
a "regular interest" in the Upper-Tier REMIC and by which the Lower-Tier
Principal Amount of each Class of Uncertificated Lower-Tier Interests
representing a "regular interest" in the Lower-Tier REMIC would be reduced to
zero is the Rated Final Distribution Date. The "latest possible maturity date"
of the Class X-2 Certificates is the Class X-2 Termination Date.
(l) None of the Trustee, the Master Servicers or the Special
Servicer, as applicable, shall sell, dispose of or substitute for any of the
Mortgage Loans (except in connection with (i) the default, imminent default or
foreclosure of a Mortgage Loan, including but not limited to, the acquisition or
sale of a Mortgaged Property acquired by foreclosure or deed in lieu of
foreclosure, (ii) the bankruptcy of the Trust Fund, (iii) the termination of the
Trust Fund pursuant to Article IX of this Agreement or (iv) a purchase of
Mortgage Loans pursuant to Article II or III of this Agreement) or acquire any
assets for the Trust Fund or the Lower-Tier REMIC or the Upper-Tier REMIC or
sell or dispose of any investments in the Certificate Account or the REO Account
for gain unless it has received an Opinion of Counsel that such sale,
disposition or substitution will not (a) affect adversely the status of the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (b) unless the Trustee,
each Master Servicer or the Special Servicer, as applicable, has determined in
its sole discretion to indemnify the Trust Fund against such tax, cause the
Trust Fund or the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to a
tax on "prohibited transactions" pursuant to the REMIC Provisions.
Section 10.02 Use of Agents. (a) The Trustee shall execute all of
its obligations and duties under this Article X through its Corporate Trust
Office. The Trustee may execute any of its obligations and duties under this
Article X either directly or by or through agents or attorneys. The Trustee
shall not be relieved of any of its duties or obligations under this Article X
by virtue of the appointment of any such agents or attorneys.
Section 10.03 Depositor, Master Servicers and Special Servicer to
Cooperate with Trustee. (a) The Depositor shall provide or cause to be provided
to the Trustee within ten (10) days after the Depositor receives a request from
the Trustee, all information or data that the Trustee reasonably determines to
be relevant for tax purposes as to the valuations and issue prices of the
Certificates, including, without limitation, the price, yield, Prepayment
Assumptions and projected cash flow of the Certificates.
(b) Each Master Servicer and the Special Servicer shall each furnish
such reports, certifications and information, and upon reasonable notice and
during normal business hours, access to such books and records maintained
thereby, as may relate to the Certificates or the Trust Fund and as shall be
reasonably requested by the Trustee in order to enable it to perform its duties
hereunder.
Section 10.04 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 Section 10.01 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. If LaSalle Bank National
Association is removed as Trustee, then LaSalle Bank National Association shall
be terminated as REMIC Administrator.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the 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 Registrar, the Trustee, the Master Servicers, 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 Servicers, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any REMIC Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.04, the Trustee may appoint a
successor REMIC Administrator, in which case the Trustee shall given written
notice of such appointment to the Master Servicers and the Depositor and shall
mail notice of such appointment to all Certificateholders; provided, however,
that no successor REMIC Administrator shall be appointed unless eligible under
the provisions of this Section 10.04. Any successor REMIC Administrator upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as REMIC Administrator. No REMIC Administrator
shall have responsibility or liability for any action taken by it as such at the
direction of the Trustee.
[End of Article X]
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. (a) This Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders or the Companion Holders:
(i) to cure any ambiguity to the extent that it does not materially
and adversely affect any Certificateholder or Companion Holder;
(ii) to cause the provisions in this Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus
with respect to the Certificates, the Trust or this Agreement or to
correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of
any Certificateholder or Companion Holder;
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust
Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC,
or the Grantor Trust as a grantor trust at all times that any Certificate
is outstanding or to avoid or minimize the risk of the imposition of any
tax on the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC pursuant to the Code that would be a claim against the Trust Fund or
either of the Lower-Tier REMIC or the Upper-Tier REMIC, provided that the
Trustee has received an Opinion of Counsel (at the expense of the party
requesting such amendment) to the effect that (a) such action is necessary
or desirable to maintain such qualification or to avoid or minimize the
risk of the imposition of any such tax and (b) such action will not
adversely affect in any material respect the interests of any
Certificateholder or any Companion Holder;
(iv) to change the timing and/or nature of deposits into the
Certificate Accounts, any Distribution Accounts or REO Account, provided
that (a) the P&I Advance Date shall in no event be later than the Business
Day prior to related Distribution Date, (b) such change shall not, as
evidenced by an Opinion of Counsel (at the expense of the party requesting
such amendment or at the expense of the Trust Fund if the requesting party
is the Trustee), adversely affect in any material respect the interests of
any Certificateholder or any Companion Holder and (c) such change shall
not result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates as evidenced by
a letter from each Rating Agency to such effect;
(v) to modify, eliminate or add to the provisions of Section 5.02(c)
or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC
or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, (x) as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto and (y) result in the downgrade,
withdrawal or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each Rating Agency;
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not
result in the downgrade, withdrawal or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by a letter
from each Rating Agency to such effect; and
(viii) to modify the provisions of Sections 3.05 and 3.19 (with
respect to reimbursement of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts) if (a) the Depositor, the Master Servicers, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (b) such
modification does not adversely affect the status of the Upper-Tier REMIC
or the Lower-Tier REMIC as a REMIC, as evidenced by an Opinion of Counsel
and (c) each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or
qualification of any of the then current ratings of any Class of
Certificates;
provided that no such amendment (A) changes in any manner the obligations of any
Mortgage Loan Seller under a Mortgage Loan Purchase Agreement without the
consent of such Mortgage Loan Seller, (B) materially and adversely affects a
Companion Holder (other than the Jordan Creek Companion Loan Holder) without
such Companion Holder's consent (and in the case of the holder of the Brookdale
Office Portfolio Companion Loan, prior written consent) or (C) adversely affects
the Jordan Creek Companion Loan Holder without such Companion Holder's prior
written consent.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66 2/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
(c) Notwithstanding the foregoing, none of the Trustee, the
Depositor, the Master Servicers nor the Special Servicer will be required to
consent to any amendment hereto without having first received an Opinion of
Counsel (at the Trust Fund's expense) to the effect that such amendment is
permitted hereunder and that such amendment or the exercise of any power granted
to the Master Servicers, the Depositor, the Special Servicer, the Trustee or any
other specified person in accordance with such amendment will not result in the
imposition of a tax on any portion of the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or the Grantor Trust, cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC or cause the Grantor Trust to
fail to qualify as a grantor trust.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a statement describing the amendment to each Certificateholder and
a copy of such amendment to each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) The Trustee shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if any Master Servicer or the Trustee requests any
amendment of this Agreement in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 11.01(a) or (c) shall be payable out of the
Certificate Account.
(h) The Servicing Standards shall not be amended unless each Rating
Agency provides a written confirmation that such amendment would not cause a
downgrading, qualification or withdrawal of the then current ratings assigned to
any of the Certificates.
(i) Notwithstanding any contrary provisions of this Agreement, this
Agreement may not be amended in a manner that would adversely affect the
distributions to the Swap Counterparty or the Class A-2FL Certificates or the
rights of the Swap Counterparty under the Swap Contract or the rights of the
holders of the Class A-2FL Certificates without the consent of the Swap
Counterparty and 66 2/3% of the Holders of the Class A-2FL Certificates,
respectively.
Section 11.02 Recordation of Agreement; Counterparts. (a) To the
extent permitted by applicable law, this Agreement is subject to recordation in
all appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the properties subject to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Trustee at the expense of
the Depositor on direction by the Special Servicer and with the consent of the
Depositor (which may not be unreasonably withheld), but only upon direction
accompanied by an Opinion of Counsel (the cost of which shall be paid by the
Depositor) to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
Section 11.03 Limitation on Rights of Certificateholders. (a) The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as herein before provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates of any Class evidencing not less than
25% of the related Percentage Interests in such Class shall have made written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. The Trustee shall be under no
obligation to exercise any of the trusts or powers vested in it hereunder or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Holders of Certificates unless
such Holders have offered to the Trustee reasonable security against the costs,
expenses and liabilities which may be incurred therein or hereby. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 11.03(c), each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.04 Governing Law. This Agreement and the Certificates
shall be construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 11.05 Notices. Any communications provided for or permitted
hereunder shall be in writing and, unless otherwise expressly provided herein,
shall be deemed to have been duly given if personally delivered at or couriered,
sent by facsimile transmission or mailed by registered mail, postage prepaid
(except for notices to a Mortgage Loan Seller, a Master Servicer, the Special
Servicer and the Trustee which shall be deemed to have been duly given only when
received), to: (i) in the case of the Depositor, X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxx, Vice President, telecopy number: (000) 000-0000
with a copy to it at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx 00000, Attention:
Xxxxxx X. Xxxxx, fax number (000) 000-0000; (ii)(a) in the case of the Master
Servicer No. 1, Midland Loan Services, Inc., 00000 Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx Xxxx, Xxxxxx 00000, Attention: President; telecopy number: (913)
253-9001; (b) in the case of the Master Servicer No. 2, GMAC Commercial Mortgage
Corporation, 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Managing
Director, Commercial Servicing Operations, Re: X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-LDP5, telecopy number: (000) 000-0000, with a copy to GMAC General Counsel,
telecopy number (000) 000-0000; (iii) in the case of the Special Servicer,
Midland Loan Services, Inc., 00000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx,
Xxxxxx 00000, Attention: President, facsimile number: (000) 000-0000; (iv) in
the case of the Trustee, LaSalle Bank National Association, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and
Trust Services Group, X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5, telecopy number
(000) 000-0000; (v) in the case of the Rating Agencies, (a) S&P Ratings
Services, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: CMBS
Surveillance Group, fax number: (000) 000-0000; (b) Xxxxx'x Investors Services,
Inc., 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Commercial Mortgage Surveillance Group, fax number: (000) 000-0000; and (c)
Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, Attention: Commercial
Mortgage Backed Securities Group, fax number: (000) 000 0000; (vi) in the case
of the Mortgage Loan Sellers, (a) JPMorgan Chase Bank, N.A., 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxx, fax number (212)
000-0000, with a copy to Xxxxxx Xxxxx, fax number (000) 000-0000; (b) Eurohypo
AG, New York Branch, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx Xxxxx, fax number: (000) 000-0000; (c) IXIS Real Estate Capital
Corporation Inc., 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxx, fax number: (000) 000-0000; (d) Nomura Credit &
Capital, Inc., 2 World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: N. Xxxxx XxXxxxx, fax number: (000) 000-0000; (e) PNC
Bank, National Association, 00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000
(for deliveries or courier), and X.X. Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx
00000-0000 (for United States mail), Attention: Xxxxx Xxxx, fax number: (913)
000-0000, with a copy to it at One PNC Plaza, 000 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxxxx Xxxxxx Xxxxx, fax number:
(000) 000-0000; and (f) AIG Mortgage Capital, LLC, 0 XxxXxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, fax number: (000) 000-0000; (vii) in the
case of the Swap Counterparty, JPMorgan Chase Bank, N.A.; 000 Xxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, fax number (212)
000-0000; (viii) in the case of the Initial Directing Certificateholder,
American Capital Strategies, Ltd., Attention: Xxxx Xxxxxx, fax number: (301)
000-0000 and (ix) in the case of a Companion Holder, the address set forth in
the related Intercreditor Agreement; or as to each such Person such other
address as may hereafter be furnished by such Person to the parties hereto in
writing. Any communication required or permitted to be delivered to a
Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
Section 11.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.07 Grant of a Security Interest. The Depositor intends
that the conveyance of the Depositor's right, title and interest in and to the
Mortgage Loans pursuant to this Agreement shall constitute a sale and not a
pledge of security for a loan. If such conveyance is deemed to be a pledge of
security for a loan, however, the Depositor intends that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The Depositor also intends and agrees that, in such
event, (i) the Depositor shall be deemed to have granted to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the assets comprising the Trust Fund, including
without limitation, the Mortgage Loans, all principal and interest received or
receivable with respect to the Mortgage Loans (other than principal and interest
payments due and payable prior to the Cut-off Date and Principal Prepayments
received prior to the Cut-off Date), all amounts held from time to time in the
Certificate Accounts, the Distribution Accounts, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account, the Interest Reserve
Account and, if established, the REO Account, and all reinvestment earnings on
such amounts, and all of the Depositor's right, title and interest in and to the
proceeds of any title, hazard or other Insurance Policies related to such
Mortgage Loans and (ii) this Agreement shall constitute a security agreement
under applicable law. This Section 11.07 shall constitute notice to the Trustee
pursuant to any of the requirements of the applicable UCC.
Section 11.08 Successors and Assigns; Third Party Beneficiaries. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereto, and all such
provisions shall inure to the benefit of the Certificateholders. Each of the
Mortgage Loan Sellers and the Companion Holders (and their agents) are intended
third-party beneficiaries in respect of the respective rights afforded such
party hereunder. No other person, including, without limitation, any Mortgagor,
shall be entitled to any benefit or equitable right, remedy or claim under this
Agreement.
Section 11.09 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 11.10 Notices to the Rating Agencies. (a) The Trustee shall
use reasonable efforts promptly to provide notice to each Rating Agency and the
Swap Counterparty 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; and
(iv) the repurchase or substitution of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 6 of the related Mortgage Loan Purchase
Agreement.
(b) Each Master Servicer shall use reasonable efforts promptly to
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of any Certificate Accounts;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any change in the lien priority of any Mortgage Loan with
respect to an assumption of the Mortgage Loan or additional encumbrance
described in Section 3.08;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any Mortgage
Loan with a Stated Principal Balance that is equal to or greater than the
lesser of (1) an amount greater than 5% of the then aggregate outstanding
principal balances of the Mortgage Loans or (2) $35,000,000;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
(viii) any release or substitution of any Mortgaged Property.
(c) Upon written request, each of the Master Servicers and the
Special Servicer shall promptly furnish to each Rating Agency copies of
inspection reports and other items delivered to each of the Master Servicers and
Special Servicer pursuant to Sections 3.12(a) and 3.12(b).
(d) The Trustee shall promptly furnish notice to the Rating Agencies
of (i) any change in the location of the Distribution Accounts and (ii) the
final payment to any Class of Certificateholders.
(e) The Trustee, each Master Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency with respect to each Mortgage
Loan such information as the Rating Agency shall reasonably request and which
the Trustee, such Master Servicer or Special Servicer, can reasonably provide in
accordance with applicable law and without waiving any attorney-client privilege
relating to such information or violating the terms of this Agreement or any
Mortgage Loan documents. The Trustee, each Master Servicer and Special Servicer,
as applicable, may include any reasonable disclaimer it deems appropriate with
respect to such information. Notwithstanding anything to the contrary herein,
nothing in this Section 11.10 shall require a party to provide duplicative
notices or copies to the Rating Agencies with respect to any of the above listed
items.
[End of Article XI]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP., Depositor
By:/s/ Xxxxxxx X. Xxx
--------------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
MIDLAND LOAN SERVICES, INC.,
Master Servicer No. 1
By:/s/ Xxxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
Master Servicer No. 2
By:/s/ Xxxxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
MIDLAND LOAN SERVICES, INC.,
Special Servicer
By:/s/ Xxxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION,
Trustee
By:/s/ Xxx X. Xxxxx
--------------------------------------
Name: Xxx X. Xxxxx
Title: Assistant Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 21st day of December, 2005, before me, a notary public in and
for said State, personally appeared Xxxxxxx X. Xxx, known to me to be a Vice
President of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 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.
/s/ Xxxx X. Xxxxxxx
----------------------------------------
Notary Public
[SEAL]
My commission expires: XXXX X. XXXXXXX
NOTARY PUBLIC STATE OF NEW YORK
May 20, 2006 NO. 02LE6074669
--------------------------------------- QUALIFIED IN NEW YORK COUNTRY
COMMISSION EXPIRES MAY 20, 0000
XXXXX XX XXXXXX )
) ss.:
COUNTY OF XXXXXXX )
On the 21st day of December, 2005, before me, a notary public in and
for said State, personally appeared Xxxxxxxx X. Xxxxxx, known to me to be a
Senior Vice President of Midland Loan Services, 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.
/s/ Xxxxx Xxxx
----------------------------------------
Notary Public
[SEAL]
My commission expires: XXXXX XXXX
NOTARY PUBLIC - State of Kansas
June 11, 2006 My Appt. Exp. 06/11/06
---------------------------------------
STATE OF PENNSYLVANIA )
) ss.:
COUNTY OF XXXXXXXXXX )
On the 22nd day of December, 2005, before me, a notary public in and
for said State, personally appeared Xxxxxx Xxxxxxxxxx, known to me to be a Vice
President of GMAC Commerical Mortgage Corporation, 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.
/s/ Xxx X. Xxxxxxxxx
----------------------------------------
Notary Public
[SEAL]
My commission expires: NOTARIAL SEAL
Xxx X. Xxxxxxxxx, Notary Public
July 8, 0000 Xxxxxxx Xxx., Xxxxxxxxxx Xxxxxx
--------------------------------------- My commission expires July 8, 0000
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF XXXX )
On the 28th day of December, 2005, before me, Xxxxx X'Xxxx, a notary
public in and for said State, personally appeared Xxx X. Xxxxx, known to me to
be a Asst. Vice President of LaSalle Bank National Association, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said 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.
/s/ Xxxxx X'Xxxx
----------------------------------------
Xxxxx X'Xxxx
Notary Public, State of Illinois,
County of Xxxx
[SEAL]
My commission expires:
September 22, 2009
---------------------------------------
--------------------------------
"OFFICIAL SEAL"
XXXXX X'XXXX
NOTARY PUBLIC STATE OF ILLINOIS
My Commission Expires 09/22/2009
--------------------------------
[Notarial Seal]
EXHIBIT A-1
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.0350% MASTER SERVICERS: MIDLAND LOAN SERVICES,
INC. AND GMAC COMMERCIAL MORTGAGE
CORPORATION
DENOMINATION: $250,560,000
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF DECEMBER 1, 2005
TRUSTEE: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: 46625Y XL 2
CLOSING DATE: DECEMBER 28, 2005
ISIN NO.: US46625YXL28
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006 COMMON CODE NO.: 023971801
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-1-[--]
CERTIFICATE BALANCE
OF THE CLASS A-1 CERTIFICATES
AS OF THE CLOSING DATE: $250,560,000
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF
THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-2
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS A-2FL
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
REPRESENTS AN UNDIVIDED BENEFICIAL INTEREST IN A REMIC REGULAR INTEREST AND A
SWAP CONTRACT AND CONSTITUTES AN INTEREST IN A GRANTOR TRUST UNDER THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PASS-THROUGH RATE ON THIS CERTIFICATE IS BASED UPON LIBOR AND THEREFORE IS
SUBJECT TO CHANGE OVER TIME BASED UPON CHANGES IN THE RATE OF LIBOR. IN
ADDITION, THE PASS-THROUGH RATE ON THIS CLASS A-2FL CERTIFICATE MAY CONVERT TO A
FIXED PER ANNUM RATE UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE POOLING AND
SERVICING AGREEMENT.
PASS-THROUGH RATE: FLOATING IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $200,000,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46625Y ZM 8
DEFINED HEREIN)
ISIN NO.: US46625YZM82
CLOSING DATE: DECEMBER 28, 2005
COMMON CODE NO.: 023971836
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006
CERTIFICATE NO.: A-2FL-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-2FL CERTIFICATES
AS OF THE CLOSING DATE: $200,000,000
CLASS A-2FL CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-2FL Certificates issued by the Trust Fund created pursuant to the
Pooling and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-2FL Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate represents a beneficial interest in a portion of a
grantor trust under subpart E, Part I of subchapter J of the Internal Revenue
Code of 1986, as amended, which portion consists of the Class A-2FL Regular
Interest, the Swap Contract and the Floating Rate Account. Each Holder of this
Certificate, by acceptance hereof, agrees to treat, and take no action
inconsistent with the treatment of, this Certificate in accordance with the
preceding sentence for purposes of federal income taxes, state and local income
and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges in limited circumstances as provided in the Pooling
and Servicing Agreement. All sums distributable on this Certificate are payable
in the coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (calculated on the basis of
the actual number of days in the month and assuming each year has 360 days)
during the applicable Interest Accrual Period relating to such Distribution Date
at the Class A-2FL Pass-Through Rate specified above on the Certificate Balance
of this Certificate immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount equal to this Certificate's pro rata share of the Class A-2FL Available
Funds to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement. Distributions
in respect of the Class A-2FL Certificates may depend, in part, on payments from
the Swap Counterparty under the Swap Contract as more specifically set forth in
the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the
Distribution Accounts and the Floating Rate Account will be held on behalf of
the Trustee on behalf of the Holders of Certificates specified in the Pooling
and Servicing Agreement and each Master Servicer (with respect to its related
Certificate Account) or the Trustee (with respect to the Distribution Accounts
and the Floating Rate Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds in the Certificate Accounts will be
paid to the applicable Master Servicer as set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, withdrawals from
the Certificate Accounts shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-2FL Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of $10,000 initial Certificate Balance, and
in integral multiples of $1 in excess thereof, with one Certificate of each such
Class evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2FL CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-3
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 5.1980% MASTER SERVICERS: MIDLAND LOAN SERVICES,
INC. AND GMAC COMMERCIAL MORTGAGE
CORPORATION
DENOMINATION: $297,502,000
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF DECEMBER 1, 2005
TRUSTEE: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: 46625Y XM 0
CLOSING DATE: DECEMBER 28, 2005
ISIN NO.: US46625YXM01
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006 COMMON CODE NO.: 023971879
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-2-[--]
CERTIFICATE BALANCE
OF THE CLASS A-2 CERTIFICATES
AS OF THE CLOSING DATE: $297,502,000
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-2 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-2 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-2 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS A-3
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $171,451,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46625Y XN 8
DEFINED HEREIN)
ISIN NO.: US46625YXN83
CLOSING DATE: DECEMBER 28, 2005
COMMON CODE NO.: 023971950
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006
CERTIFICATE NO.: A-3-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-3 CERTIFICATES
AS OF THE CLOSING DATE: $171,451,000
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-3 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-3 Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-3 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-3 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-5
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS A-4
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: [$500,000,000] SPECIAL SERVICER: MIDLAND LOAN SERVICES,
[$500,000,000] [$395,870,000] INC.
DATE OF POOLING AND SERVICING TRUSTEE: LASALLE BANK NATIONAL
AGREEMENT: AS OF DECEMBER 1, 2005 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: 46625Y XP 3
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
ISIN NO.: US46625YXP32
CLOSING DATE: DECEMBER 28, 2005
COMMON CODE NO.: 023971992
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006 CERTIFICATE NO.: A-4-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-4 CERTIFICATES
AS OF THE CLOSING DATE: $1,395,870,000
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-4 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-4 Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-4 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-4 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-6
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS A-SB
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $169,455,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46625Y XQ 1
DEFINED HEREIN)
ISIN NO.: US46625YXQ15
CLOSING DATE: DECEMBER 28, 2005
COMMON CODE NO.: 023972140
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006
CERTIFICATE NO.: A-SB-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-SB CERTIFICATES
AS OF THE CLOSING DATE: $169,455,000
CLASS A-SB CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-SB Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-SB Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-SB Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-SB Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-SB CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-7
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS A-1A
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $453,075,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46625Y XR 9
DEFINED HEREIN)
ISIN NO.: US46625YXR97
CLOSING DATE: DECEMBER 28, 2005
COMMON CODE NO.: 023972182
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006
CERTIFICATE NO.: A-1A-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-1A CERTIFICATES
AS OF THE CLOSING DATE: $453,075,000
CLASS A-1A CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1A Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1A Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1A Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-1A Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-8
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS X-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS X-1 CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-1 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: [$500,000,000] SPECIAL SERVICER: MIDLAND LOAN SERVICES,
[$500,000,000] [$500,000,000] INC.
[$500,000,000] [$500,000,000]
[$500,000,000] [$500,000,000]
[$500,000,000] [$197,019,779] TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 CUSIP NO.: [U48138 A4 0](1), [46625Y YB
3](2), [46625Y YC 1](3)
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS ISIN NO.: [USU48138A403](1),
DEFINED HEREIN) [US46625YYB37](2), [US46625YYC10](3)
CLOSING DATE: DECEMBER 28, 2005 COMMON CODE: [____](1) [____](2)
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: X-1-[--]
JANUARY 17, 2006
APPROXIMATE AGGREGATE NOTIONAL AMOUNT
OF THE CLASS X-1 CERTIFICATES AS OF THE
CLOSING DATE: $4, 197,019,779
-----------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS X-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Master Servicers. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP5 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X-1 Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class X-1 Pass-Through
Rate specified above on the Notional Amount of this Certificate immediately
prior to such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X-1 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of not less than $1,000,000 initial Notional Amount, and
in integral multiples of $1 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Notional Amount of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Notional
interest in this Amount of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-9
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS X-2
THIS CLASS X-2 CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-2 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: [$500,000,000] SPECIAL SERVICER: MIDLAND LOAN SERVICES,
[$500,000,000] [$500,000,000] INC.
[$500,000,000] [$500,000,000]
[$500,000,000] [$500,000,000]
[$500,000,000] [$112,657,000] TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 CUSIP NO.: 46625Y XS 7
CUT-OFF DATE: AS DEFINED IN THE ISIN NO.: US46625YXS70
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
COMMON CODE: 023972492
CLOSING DATE: DECEMBER 28, 2005
CERTIFICATE NO.: X-2-[--]
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006
APPROXIMATE AGGREGATE NOTIONAL AMOUNT
OF THE CLASS X-2 CERTIFICATES AS OF THE
CLOSING DATE: $4, 112,657,000
CLASS X-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Master Servicers. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP5 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X-2 Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class X-2 Pass-Through
Rate specified above on the Notional Amount of this Certificate immediately
prior to such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X-2 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of not less than $1,000,000 initial Notional Amount, and
in integral multiples of $1 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-10
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS A-M
THIS CLASS A-M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $419,702,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46625Y XT 5
DEFINED HEREIN)
ISIN NO.: US46625YXT53
CLOSING DATE: DECEMBER 28, 2005
COMMON CODE NO.: 023972239
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006
CERTIFICATE NO.: A-M-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-M CERTIFICATES
AS OF THE CLOSING DATE: $419,702,000
CLASS A-M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-M Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-M Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-11
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS A-J
THIS CLASS A-J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $299,038,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46625Y XV 0
DEFINED HEREIN)
ISIN NO.: US46625YXV00
CLOSING DATE: DECEMBER 28, 2005
COMMON CODE NO.: 023972298
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006
CERTIFICATE NO.: A-J-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-J CERTIFICATES
AS OF THE CLOSING DATE: $299,038,000
CLASS A-J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-J Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-J Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-12
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS B
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $26,231,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46625Y XW 8
DEFINED HEREIN)
ISIN NO.: US46625YXW82
CLOSING DATE: DECEMBER 28, 2005
COMMON CODE NO.: 023972310
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006
CERTIFICATE NO.: B-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS B CERTIFICATES
AS OF THE CLOSING DATE: $26,231,000
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class B
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class B Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class B Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-13
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS C
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $73,448,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46625Y XX 6
DEFINED HEREIN)
ISIN NO.: US46625YXX65
CLOSING DATE: DECEMBER 28, 2005
COMMON CODE NO.: 023972379
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006
CERTIFICATE NO.: C-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS C CERTIFICATES
AS OF THE CLOSING DATE: $73,448,000
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class C
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class C Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class C Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-14
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS D
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $41,970,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 00000X XX 4
DEFINED HEREIN)
ISIN NO.: US46625YXY49
CLOSING DATE: DECEMBER 28, 2005
COMMON CODE NO.: 023972450
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006
CERTIFICATE NO.: D-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS D CERTIFICATES
AS OF THE CLOSING DATE: $41,970,000
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class D
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class D Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class D Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments which
are required to be distributed on any Certificate without the consent of
the Holder of such Certificate or which are required to be distributed to
a Companion Holder, without the consent of such Companion Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class the Holders
of which are required to consent to any such amendment or remove the
requirement to obtain consent of the Companion Holders, in any such case
without the consent of the Holders of all Certificates of such Class then
outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of Certificates without
the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan Seller under a
Mortgage Loan Purchase Agreement without the consent of the applicable
Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of the
Companion Holders or written confirmation that such amendment would not
result in the downgrading, qualification or withdrawal of ratings assigned
to any Class of Certificates by any Rating Agency, amend the Servicing
Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-15
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS E
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $20,985,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46625Y XZ 1
DEFINED HEREIN)
ISIN NO.: US46625YXZ14
CLOSING DATE: DECEMBER 28, 2005
COMMON CODE NO.: 023972409
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006
CERTIFICATE NO.: E-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS E CERTIFICATES
AS OF THE CLOSING DATE: $20,985,000
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class E
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class E Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class E Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-16
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS F
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $52,463,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46625Y YA 5
DEFINED HEREIN)
ISIN NO.: US46625YYA53
CLOSING DATE: DECEMBER 28, 2005
COMMON CODE NO.: 023972476
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006
CERTIFICATE NO.: F-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS F CERTIFICATES
AS OF THE CLOSING DATE: $52,463,000
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class F
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class F Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class F Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-17
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-----------------------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $36,724,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48138 A5 7](1) [46625Y YD
DEFINED HEREIN) 9](2) [46625Y YE 7](3)
CLOSING DATE: DECEMBER 28, 2005 ISIN NO.: [USU48138A577](1)
[US46625YYD92](2) [US46625YYE75](3)
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006 COMMON CODE NO.: [____](1) [____](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: G-[--]
CERTIFICATE BALANCE
OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $36,724,000
-----------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class G
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class G Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-18
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(7)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $52,463,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48138 A6 5](1) [46625Y YF
DEFINED HEREIN) 4](2) [46625Y YG 2](3)
CLOSING DATE: DECEMBER 28, 2005 ISIN NO.: [USU48138A650](1)
[US46625YYF41](2) [US46625YYG24](3)
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006 COMMON CODE NO.: [____](1) [____](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: H-[--]
CERTIFICATE BALANCE
OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $52,463,000
-----------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class H
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class H Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class H Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-19
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(10)
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $41,970,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48138 A7 3](1) [46625Y YH
DEFINED HEREIN) 0](2) [46625Y YJ 6](3)
CLOSING DATE: DECEMBER 28, 2005 ISIN NO.: [USU48138A734](1)
[US46625YYH07](2) [US46625YYJ62](3)
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006 COMMON CODE NO.: [____](1) [____](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: J-[--]
CERTIFICATE BALANCE
OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $41,970,000
-----------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class J
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class J Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-20
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS K
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-----------------------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $62,955,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: [U48138 A8 1](1) [46625Y YK
CLOSING DATE: DECEMBER 28, 2005 3](2) [46625Y YL 1](3)
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006
ISIN NO.: [USU48138A817](1)
APPROXIMATE AGGREGATE [US46625YYK36](2) [US46625YYL19](3)
CERTIFICATE BALANCE
OF THE CLASS K CERTIFICATES
AS OF THE CLOSING DATE: $62,955,000 COMMON CODE NO.: [____](1) [____](2)
CERTIFICATE NO.: K-[--]
-----------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class K Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class K
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class K Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class K Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-21
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS L
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
------------------------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $26,232,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48138 A9 9](1) [46625Y YM
DEFINED HEREIN) 9](2) [46625Y YN 7](3)
CLOSING DATE: DECEMBER 28, 2005 ISIN NO.: [USU48138A999](1)
[US46625YYM91](2) [US46625YYN74](3)
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006 COMMON CODE NO.: [____](1) [____](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: L-[--]
CERTIFICATE BALANCE
OF THE CLASS L CERTIFICATES
AS OF THE CLOSING DATE: $26,232,000
-----------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class L Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class L
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class L Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class L Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-22
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS M
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
----------------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $15,739,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48138 B2 3](1) [46625Y YP
DEFINED HEREIN) 2](2) [46625Y YQ 0](3)
CLOSING DATE: DECEMBER 28, 2005 ISIN NO.: [USU48138B237](1)
[US46625YYP23](2) [US46625YYQ06](3)
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006 COMMON CODE NO.: [____](1) [____](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: M-[--]
CERTIFICATE BALANCE
OF THE CLASS M CERTIFICATES
AS OF THE CLOSING DATE: $15,739,000
-----------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class M Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-23
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS N
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
--------------------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $15,738,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48138 B3 1](1) [46625Y YR
DEFINED HEREIN) 8](2) [46625Y YS 6](3)
CLOSING DATE: DECEMBER 28, 2005 ISIN NO.: [USU48138B310](1)
[US46625YYR88](2) [US46625YYS61](3)
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006 COMMON CODE NO.: [____](1) [____](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: N-[--]
CERTIFICATE BALANCE
OF THE CLASS N CERTIFICATES
AS OF THE CLOSING DATE: $15,738,000
-----------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class N Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class N Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class N Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-24
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS O
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS O CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
---------------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $5,247,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48138 B4 9](1) [46625Y YT
DEFINED HEREIN) 4](2) [46625Y YU 1](3)
CLOSING DATE: DECEMBER 28, 2005 ISIN NO.: [USU48138B492](1)
[US46625YYT45](2) [US46625YYU18](3)
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006 COMMON CODE NO.: [____](1) [____](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: O-[--]
CERTIFICATE BALANCE
OF THE CLASS O CERTIFICATES
AS OF THE CLOSING DATE: $5,247,000
-----------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS O CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class O Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class O
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class O Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class O Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-25
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS P
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-------------------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $5,246,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48138 B5 6](1) [46625Y YV
DEFINED HEREIN) 9](2) [46625Y YW 7](3)
CLOSING DATE: DECEMBER 28, 2005 ISIN NO.: [USU48138B567](1)
[US46625YYV90](2) [US46625YYW73](3)
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006 COMMON CODE NO.: [____](1) [____](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: P-[--]
CERTIFICATE BALANCE
OF THE CLASS P CERTIFICATES
AS OF THE CLOSING DATE: $5,246,000
-----------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class P Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class P
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class P Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class P Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-26
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS Q
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS Q CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-----------------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $10,493,000 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48138 B6 4](1) [46625Y YX
DEFINED HEREIN) 5](2) [46625Y YY 3](3)
CLOSING DATE: DECEMBER 28, 2005 ISIN NO.: [USU48138B641](1)
[US46625YYX56](2) [US46625YYY30](3)
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006 COMMON CODE NO.: [____](1) [____](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: Q-[--]
CERTIFICATE BALANCE
OF THE CLASS Q CERTIFICATES
AS OF THE CLOSING DATE: $10,493,000
-----------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS Q CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class Q Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class Q
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class Q Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class Q Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS Q CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-27
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS NR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS NR CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE REPRESENTS A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
-------------------
(1) For Book-Entry Regulation S Investors Only.
PASS-THROUGH RATE: VARIABLE IN MASTER SERVICERS: MIDLAND LOAN SERVICES,
ACCORDANCE WITH THE POOLING AND INC. AND GMAC COMMERCIAL MORTGAGE
SERVICING AGREEMENT CORPORATION
DENOMINATION: $52,462,779 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [U48138 B7 2](1) [46625Y YZ
DEFINED HEREIN) 0](2) [46625Y ZA 4](3)
CLOSING DATE: DECEMBER 28, 2005 ISIN NO.: [USU48138B724](1)
[US46625YYZ05](2) [US46625YZA45](3)
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006 COMMON CODE NO.: [____](1) [____](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: NR-[--]
CERTIFICATE BALANCE
OF THE CLASS NR CERTIFICATES
AS OF THE CLOSING DATE: $52,462,779
-----------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS NR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class NR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class NR
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate represents a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended
(the "Code"). Each Holder of this Certificate, by acceptance hereof, agrees to
treat, and take no action inconsistent with the treatment of, this Certificate
in accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class NR Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class NR Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS NR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
--------- --------------------------- --------------------- ---------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-28
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS S
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A.
THIS CERTIFICATE REPRESENTS AN INTEREST IN A GRANTOR TRUST UNDER THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN INVESTMENT REPRESENTATION LETTER FROM THE
PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND SUBSTANCE
SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE EFFECT THAT
SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE
CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3-101).
EACH PURCHASER OF THIS CERTIFICATE SHALL BE REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE POOLING AND
SERVICING AGREEMENT.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICERS: MIDLAND LOAN SERVICES,
CERTIFICATE: 100% INC. AND GMAC COMMERCIAL MORTGAGE
CORPORATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS TRUSTEE: LASALLE BANK NATIONAL
DEFINED HEREIN) ASSOCIATION
CLOSING DATE: DECEMBER 28, 2005 CERTIFICATE NO.: S-[--]
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006
CLASS S PERCENTAGE INTEREST: 100%
CLASS S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT AMERICAN CAPITAL STRATEGIES, LTD.
is the registered owner of the interest evidenced by this Certificate in the
Class S Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP5 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate represents a beneficial interest in a portion of a
grantor trust under subpart E, Part I of subchapter J of the Internal Revenue
Code of 1986, as amended, which portion consists of the Excess Interest and the
Excess Interest Distribution Account. Each Holder of this Certificate, by
acceptance hereof, agrees to treat, and take no action inconsistent with the
treatment of, this Certificate in accordance with the preceding sentence for
purposes of federal income taxes, state and local income and franchise taxes and
other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
the Excess Interest then distributable, if any, allocable to the Class S
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to Excess Interest
collected on the Mortgage Loans, all as more specifically set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, the Certificate Account and the Distribution Accounts will be held on
behalf of the Trustee on behalf of the Holders of Certificates specified in the
Pooling and Servicing Agreement and each Master Servicer (with respect to its
related Certificate Account) or the Trustee (with respect to the Distribution
Accounts) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Accounts will be paid to the
applicable Master Servicer as set forth in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, withdrawals from the
Certificate Accounts shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(f) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
The Class S Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer of this Certificate,
the Transferor shall reimburse the Trust for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-29
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICERS: MIDLAND LOAN SERVICES,
CERTIFICATE: 100% INC. AND GMAC COMMERCIAL MORTGAGE
CORPORATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS TRUSTEE: LASALLE BANK NATIONAL
DEFINED HEREIN) ASSOCIATION
CLOSING DATE: DECEMBER 28, 2005 CUSIP NO.: [U48138 C6 3](1) [46625Y ZP
1](2) [46625Y ZS 5](3)
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006 ISIN NO.: [USU48138C631](1)
[US46625YZP14](2) [US46625YZS52](3)
CLASS R PERCENTAGE INTEREST: 100%
CERTIFICATE NO.: R-[--]
-----------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP5 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Class R Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class R
Certificates shall be the "tax matters person" for the Upper-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Master Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Trustee in an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(d) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class R Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicers,
the Trustee and the Certificate Registrar of any change or impending change to
such status; (B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Certificate Registrar shall require
delivery to it, and no Transfer of any Class R Certificate shall be registered
until the Certificate Registrar receives, an affidavit substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer
Affidavit") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee shall be
effected; and (D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class R Certificate and (2) not to transfer its Ownership
Interest in such Class R Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-30
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS MASTER SERVICERS: MIDLAND LOAN SERVICES,
CERTIFICATE: 100% INC. AND GMAC COMMERCIAL MORTGAGE
CORPORATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2005 SPECIAL SERVICER: MIDLAND LOAN SERVICES,
INC.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS TRUSTEE: LASALLE BANK NATIONAL
DEFINED HEREIN) ASSOCIATION
CLOSING DATE: DECEMBER 28, 2005 CUSIP NO.: [U48138 C7 1](1) [46625Y ZQ
9](2) [46625Y ZT 3](3)
FIRST DISTRIBUTION DATE:
JANUARY 17, 2006 ISIN NO.: [USU48138C714](1)
[US46625YZQ96](2) [US46625TZT36](3)
CLASS LR PERCENTAGE INTEREST: 100%
CERTIFICATE NO.: LR-[--]
-----------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Floating Rate Account, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE
SPECIAL SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP5 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Class LR Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class LR
Certificates shall be the "tax matters person" for the Lower-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Master Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Trustee in an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and
each Master Servicer (with respect to its related Certificate Account) or the
Trustee (with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Accounts will be paid to the applicable Master Servicer as set forth
in the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Accounts shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class LR Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(b) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class LR Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicers,
the Trustee and the Certificate Registrar of any change or impending change to
such status; (B) In connection with any proposed Transfer of any Ownership
Interest in a Class LR Certificate, the Certificate Registrar shall require
delivery to it, and no Transfer of any Class LR Certificate shall be registered
until the Certificate Registrar receives, an affidavit substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer
Affidavit") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or an
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of
an Ownership Interest in a Class LR Certificate to such proposed Transferee
shall be effected; and (D) Each Person holding or acquiring any Ownership
Interest in a Class LR Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Class LR Certificate and (2) not to
transfer its Ownership Interest in such Class LR Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-31
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS HG-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF HOUSTON GALLERIA COLLATERAL SUPPORT DEFICIT
ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE
TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST UNDER THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
-----------------------------
(1) For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: 5.5560% MASTER SERVICERS: MIDLAND LOAN SERVICES,
INC. AND GMAC COMMERCIAL MORTGAGE
CORPORATION
DENOMINATION: $27,000,000
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF DECEMBER 1, 2005
TRUSTEE: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: [X00000X00](1) [00000XXX0](2)
[00000XXX0](3)
CLOSING DATE: DECEMBER 28, 2005
ISIN NO.: [USU48138B807](1)
FIRST DISTRIBUTION DATE: [US46625YZB28](2) [US46625YZC01](3)
JANUARY 17, 2006
COMMON CODE NO.: [____](1) [____](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS HG-1 CERTIFICATES CERTIFICATE NO.: HG-1-[__]
AS OF THE CLOSING DATE: $27,000,000
--------------
(1) For Book-Entry Regulation S Certificates Only.
(2) For Book-Entry Regulation S Certificates Only.
(3) For Book-Entry Rule 144A Only.
CLASS HG-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, all payments on or collections in respect of the Houston Gallaria Trust
Subordinate Companion Loan due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Houston Galleria Trust Subordinate Companion
Loan, and such amounts, with respect to the Houston Galleria Trust Subordinate
Companion Loan, as shall from time to time be held in the Certificate Account,
the Distribution Accounts, the Interest Reserve Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE UNDERLYING HOUSTON GALLERIA TRUST SUBORDINATE COMPANION LOAN IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class HG-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
HG-1 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class HG-1 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Class HG Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Houston Galleria Collateral Support Deficit and Certificate
Deferred Interest on the Houston Galleria Trust Subordinate Companion Loan shall
be allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Houston Galleria
Collateral Support Deficit or Certificate Deferred Interest on the Houston
Galleria Trust Subordinate Companion Loan allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Houston Galleria Trust
Subordinate Companion Loan, all as more specifically set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement, the
Certificate Account and the Distribution Accounts will be held on behalf of the
Trustee on behalf of the Holders of Certificates specified in the Pooling and
Servicing Agreement and each Master Servicer (with respect to its related
Certificate Account) or the Trustee (with respect to the Distribution Accounts)
will be authorized to make withdrawals therefrom. Amounts on deposit in such
accounts may be invested in Permitted Investments. Interest or other income
earned on funds in the Certificate Accounts will be paid to the applicable
Master Servicer as set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and the Houston
Galleria Trust Subordinate Companion Loan and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, this
Class of Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain consent of the Companion Holders, in any such case without
the consent of the Holders of all Certificates of such Class then outstanding or
the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would not
result in the downgrading, qualification or withdrawal of ratings assigned to
any Class of Certificates by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and the Houston Galleria Trust
Subordinate Companion Loan and all property acquired in respect of any Mortgage
Loan and the Houston Galleria Trust Subordinate Companion Loan remaining in the
Trust Fund, and thereby effect termination of the Trust Fund and early
retirement of the then outstanding Certificates, on any Distribution Date on
which the aggregate Stated Principal Balances of the Mortgage Loans, the Houston
Galleria Trust Subordinate Companion Loan and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS HG-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- --------------------- -----------
--------- --------------------------- --------------------- -----------
--------- --------------------------- --------------------- -----------
--------- --------------------------- --------------------- -----------
--------- --------------------------- --------------------- -----------
--------- --------------------------- --------------------- -----------
--------- --------------------------- --------------------- -----------
--------- --------------------------- --------------------- -----------
--------- --------------------------- --------------------- -----------
--------- --------------------------- --------------------- -----------
--------- --------------------------- --------------------- -----------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-32
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS HG-2
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS OF CERTIFICATES IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF HOUSTON GALLERIA
COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE
BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
----------------
(1) For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: 5.5560% MASTER SERVICERS: MIDLAND LOAN SERVICES,
INC. AND GMAC COMMERCIAL MORTGAGE
CORPORATION
DENOMINATION: $24,000,000
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF DECEMBER 1, 2005
TRUSTEE: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: [X00000X00](1) [00000XXX0](2)
[00000XXX0](3)
CLOSING DATE: DECEMBER 28, 2005
ISIN NO.: [USU48138B989](1)
FIRST DISTRIBUTION DATE: [US46625YZD83](2) [US46625YZE66](3)
JANUARY 17, 2006
COMMON CODE NO.: [____](1) [____](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS HG-2 CERTIFICATES CERTIFICATE NO.: HG-2-[__]
AS OF THE CLOSING DATE: $24,000,000
--------------
(1) For Book-Entry Regulation S Certificates Only.
(2) For Book-Entry Regulation S Certificates Only.
(3) For Book-Entry Rule 144A Only.
CLASS HG-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, all payments on or collections in respect of the Houston Gallaria Trust
Subordinate Companion Loan due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Houston Galleria Trust Subordinate Companion
Loan, and such amounts, with respect to the Houston Galleria Trust Subordinate
Companion Loan, as shall from time to time be held in the Certificate Account,
the Distribution Accounts, the Interest Reserve Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE UNDERLYING HOUSTON GALLERIA TRUST SUBORDINATE COMPANION LOAN IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class HG-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
HG-2 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class HG-2 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Class HG Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Houston Galleria Collateral Support Deficit and Certificate
Deferred Interest on the Houston Galleria Trust Subordinate Companion Loan shall
be allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Houston Galleria
Collateral Support Deficit or Certificate Deferred Interest on the Houston
Galleria Trust Subordinate Companion Loan allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Houston Galleria Trust
Subordinate Companion Loan, all as more specifically set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement, the
Certificate Account and the Distribution Accounts will be held on behalf of the
Trustee on behalf of the Holders of Certificates specified in the Pooling and
Servicing Agreement and each Master Servicer (with respect to its related
Certificate Account) or the Trustee (with respect to the Distribution Accounts)
will be authorized to make withdrawals therefrom. Amounts on deposit in such
accounts may be invested in Permitted Investments. Interest or other income
earned on funds in the Certificate Accounts will be paid to the applicable
Master Servicer as set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and the Houston
Galleria Trust Subordinate Companion Loan and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, this
Class of Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain consent of the Companion Holders, in any such case without
the consent of the Holders of all Certificates of such Class then outstanding or
the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would not
result in the downgrading, qualification or withdrawal of ratings assigned to
any Class of Certificates by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and the Houston Galleria Trust
Subordinate Companion Loan and all property acquired in respect of any Mortgage
Loan and the Houston Galleria Trust Subordinate Companion Loan remaining in the
Trust Fund, and thereby effect termination of the Trust Fund and early
retirement of the then outstanding Certificates, on any Distribution Date on
which the aggregate Stated Principal Balances of the Mortgage Loans, the Houston
Galleria Trust Subordinate Companion Loan and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS HG-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-33
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS HG-3
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS OF CERTIFICATES IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF HOUSTON GALLERIA
COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE
BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
-------------------
(1) For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: 5.5560% MASTER SERVICERS: MIDLAND LOAN SERVICES,
INC. AND GMAC COMMERCIAL MORTGAGE
CORPORATION
DENOMINATION: $40,800,000
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF DECEMBER 1, 2005
TRUSTEE: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: [X00000X00](1)
[00000XXX0](2) [00000XXX0](3)
CLOSING DATE: DECEMBER 28, 2005
ISIN NO.: [USU48138C227](1)
FIRST DISTRIBUTION DATE: [US46625YZF32](2) [US46625YZG15](3)
JANUARY 17, 2006
COMMON CODE NO.: [____](1) [____](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS HG-3 CERTIFICATES CERTIFICATE NO.: HG-3-[__]
AS OF THE CLOSING DATE: $40,800,000
--------------
(1) For Book-Entry Regulation S Certificates Only.
(2) For Book-Entry Regulation S Certificates Only.
(3) For Book-Entry Rule 144A Only.
CLASS HG-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, all payments on or collections in respect of the Houston Gallaria Trust
Subordinate Companion Loan due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Houston Galleria Trust Subordinate Companion
Loan, and such amounts, with respect to the Houston Galleria Trust Subordinate
Companion Loan, as shall from time to time be held in the Certificate Account,
the Distribution Accounts, the Interest Reserve Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE UNDERLYING HOUSTON GALLERIA TRUST SUBORDINATE COMPANION LOAN IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class HG-3 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
HG-3 Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class HG-3 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Class HG Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Houston Galleria Collateral Support Deficit and Certificate
Deferred Interest on the Houston Galleria Trust Subordinate Companion Loan shall
be allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Houston Galleria
Collateral Support Deficit or Certificate Deferred Interest on the Houston
Galleria Trust Subordinate Companion Loan allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Houston Galleria Trust
Subordinate Companion Loan, all as more specifically set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement, the
Certificate Account and the Distribution Accounts will be held on behalf of the
Trustee on behalf of the Holders of Certificates specified in the Pooling and
Servicing Agreement and each Master Servicer (with respect to its related
Certificate Account) or the Trustee (with respect to the Distribution Accounts)
will be authorized to make withdrawals therefrom. Amounts on deposit in such
accounts may be invested in Permitted Investments. Interest or other income
earned on funds in the Certificate Accounts will be paid to the applicable
Master Servicer as set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and the Houston
Galleria Trust Subordinate Companion Loan and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, this
Class of Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain consent of the Companion Holders, in any such case without
the consent of the Holders of all Certificates of such Class then outstanding or
the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would not
result in the downgrading, qualification or withdrawal of ratings assigned to
any Class of Certificates by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and the Houston Galleria Trust
Subordinate Companion Loan and all property acquired in respect of any Mortgage
Loan and the Houston Galleria Trust Subordinate Companion Loan remaining in the
Trust Fund, and thereby effect termination of the Trust Fund and early
retirement of the then outstanding Certificates, on any Distribution Date on
which the aggregate Stated Principal Balances of the Mortgage Loans, the Houston
Galleria Trust Subordinate Companion Loan and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS HG-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-34
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS HG-4
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS OF CERTIFICATES IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF HOUSTON GALLERIA
COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE
BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------------
(1) For Book-Entry Regulation S Certificate Only.
PASS-THROUGH RATE: 5.5560% MASTER SERVICERS: MIDLAND LOAN SERVICES,
INC. AND GMAC COMMERCIAL MORTGAGE
CORPORATION
DENOMINATION: $32,400,000
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF DECEMBER 1, 2005
TRUSTEE: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: [X00000X00](1)
[00000XXX0](2) [00000XXX0](3)
CLOSING DATE: DECEMBER 28, 2005
ISIN NO.: [USU48138C300](1)
FIRST DISTRIBUTION DATE: [US46625YZH97](2) [US46625YZJ53](3)
JANUARY 17, 2006
COMMON CODE NO.: [____](1) [____](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS HG-4 CERTIFICATES CERTIFICATE NO.: HG-4-[__]
AS OF THE CLOSING DATE: $32,400,000
--------------
(1) For Book-Entry Regulation S Certificates Only.
(2) For Book-Entry Regulation S Certificates Only.
(3) For Book-Entry Rule 144A Only.
CLASS HG-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, all payments on or collections in respect of the Houston Gallaria Trust
Subordinate Companion Loan due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Houston Galleria Trust Subordinate Companion
Loan, and such amounts, with respect to the Houston Galleria Trust Subordinate
Companion Loan, as shall from time to time be held in the Certificate Account,
the Distribution Accounts, the Interest Reserve Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE UNDERLYING HOUSTON GALLERIA TRUST SUBORDINATE COMPANION LOAN IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class HG-4 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
HG-4 Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class HG-4 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Class HG Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Houston Galleria Collateral Support Deficit and Certificate
Deferred Interest on the Houston Galleria Trust Subordinate Companion Loan shall
be allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Houston Galleria
Collateral Support Deficit or Certificate Deferred Interest on the Houston
Galleria Trust Subordinate Companion Loan allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Houston Galleria Trust
Subordinate Companion Loan, all as more specifically set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement, the
Certificate Account and the Distribution Accounts will be held on behalf of the
Trustee on behalf of the Holders of Certificates specified in the Pooling and
Servicing Agreement and each Master Servicer (with respect to its related
Certificate Account) or the Trustee (with respect to the Distribution Accounts)
will be authorized to make withdrawals therefrom. Amounts on deposit in such
accounts may be invested in Permitted Investments. Interest or other income
earned on funds in the Certificate Accounts will be paid to the applicable
Master Servicer as set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and the Houston
Galleria Trust Subordinate Companion Loan and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, this
Class of Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain consent of the Companion Holders, in any such case without
the consent of the Holders of all Certificates of such Class then outstanding or
the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would not
result in the downgrading, qualification or withdrawal of ratings assigned to
any Class of Certificates by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and the Houston Galleria Trust
Subordinate Companion Loan and all property acquired in respect of any Mortgage
Loan and the Houston Galleria Trust Subordinate Companion Loan remaining in the
Trust Fund, and thereby effect termination of the Trust Fund and early
retirement of the then outstanding Certificates, on any Distribution Date on
which the aggregate Stated Principal Balances of the Mortgage Loans, the Houston
Galleria Trust Subordinate Companion Loan and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS HG-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-35
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS HG-5
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS OF CERTIFICATES IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF HOUSTON GALLERIA
COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE
BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
--------------
(1) For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: 5.5560% MASTER SERVICERS: MIDLAND LOAN SERVICES,
INC. AND GMAC COMMERCIAL MORTGAGE
CORPORATION
DENOMINATION: $5,800,000
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF DECEMBER 1, 2005
TRUSTEE: LASALLE BANK NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: [X00000X00](1)
[00000XXX0](2) [00000XXX0](3)
CLOSING DATE: DECEMBER 28, 2005
ISIN NO.: [USU48138C482](1)
FIRST DISTRIBUTION DATE: [US46625YZK27](2) [US46625YZL00](3)
JANUARY 17, 2006
COMMON CODE NO.: [____](1) [____](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS HG-5 CERTIFICATES CERTIFICATE NO.: HG-5-[__]
AS OF THE CLOSING DATE: $5,800,000
--------------
(1) For Book-Entry Regulation S Certificates Only.
(2) For Book-Entry Regulation S Certificates Only.
(3) For Book-Entry Rule 144A Only.
CLASS HG-5 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, all payments on or collections in respect of the Houston Gallaria Trust
Subordinate Companion Loan due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Houston Galleria Trust Subordinate Companion
Loan, and such amounts, with respect to the Houston Galleria Trust Subordinate
Companion Loan, as shall from time to time be held in the Certificate Account,
the Distribution Accounts, the Interest Reserve Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE UNDERLYING HOUSTON GALLERIA TRUST SUBORDINATE COMPANION LOAN IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class HG-5 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
HG-5 Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class HG-5 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Class HG Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Houston Galleria Collateral Support Deficit and Certificate
Deferred Interest on the Houston Galleria Trust Subordinate Companion Loan shall
be allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Houston Galleria
Collateral Support Deficit or Certificate Deferred Interest on the Houston
Galleria Trust Subordinate Companion Loan allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Houston Galleria Trust
Subordinate Companion Loan, all as more specifically set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement, the
Certificate Account and the Distribution Accounts will be held on behalf of the
Trustee on behalf of the Holders of Certificates specified in the Pooling and
Servicing Agreement and each Master Servicer (with respect to its related
Certificate Account) or the Trustee (with respect to the Distribution Accounts)
will be authorized to make withdrawals therefrom. Amounts on deposit in such
accounts may be invested in Permitted Investments. Interest or other income
earned on funds in the Certificate Accounts will be paid to the applicable
Master Servicer as set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and the Houston
Galleria Trust Subordinate Companion Loan and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, this
Class of Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $250,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain consent of the Companion Holders, in any such case without
the consent of the Holders of all Certificates of such Class then outstanding or
the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would not
result in the downgrading, qualification or withdrawal of ratings assigned to
any Class of Certificates by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and the Houston Galleria Trust
Subordinate Companion Loan and all property acquired in respect of any Mortgage
Loan and the Houston Galleria Trust Subordinate Companion Loan remaining in the
Trust Fund, and thereby effect termination of the Trust Fund and early
retirement of the then outstanding Certificates, on any Distribution Date on
which the aggregate Stated Principal Balances of the Mortgage Loans, the Houston
Galleria Trust Subordinate Companion Loan and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS HG-5 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Certificate
interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-36
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-LDP5, CLASS HG-X
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS HG-X CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
HG-X CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE HOUSTON GALLERIA TRUST SUBORDINATE COMPANION LOAN. ACCORDINGLY,
THE INTEREST PAYABLE PURSUANT TO THIS CERTIFICATE MAY BE LESS THAN THAT SET
FORTH BELOW. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST UNDER THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
PAYING AGENT, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE
CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
-----------------------
(1) For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: 0.0810% MASTER SERVICERS: MIDLAND LOAN SERVICES,
INC. AND GMAC COMMERCIAL MORTGAGE
CORPORATION
DENOMINATION: $130,000,000
SPECIAL SERVICER: MIDLAND LOAN SERVICES,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF DECEMBER 1, 2005
TRUSTEE: LASALLE BANK NATIONAL
CUT-OFF DATE: AS DEFINED IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: [X00000X00](1)
[00000XXX0](2) [00000XXX0](3)
CLOSING DATE: DECEMBER 28, 2005
ISIN NO.: [USU48138C557](1)
FIRST DISTRIBUTION DATE: [US46625YZN65](2) [US46625YZR79](3)
JANUARY 17, 2006
COMMON CODE NO.: [____](1) [____](2)
APPROXIMATE AGGREGATE
NOTIONAL AMOUNT
OF THE CLASS HG-X CERTIFICATES CERTIFICATE NO.: HG-X-[__]
AS OF THE CLOSING DATE: $130,000,000
--------------
(1) For Book-Entry Regulation S Certificates Only.
(2) For Book-Entry Regulation S Certificates Only.
(3) For Book-Entry Rule 144A Only.
CLASS HG-X CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, all payments on or collections in respect of the Houston Gallaria Trust
Subordinate Companion Loan due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Houston Galleria Trust Subordinate Companion
Loan, and such amounts, with respect to the Houston Galleria Trust Subordinate
Companion Loan, as shall from time to time be held in the Certificate Account,
the Distribution Accounts, the Interest Reserve Account, the Gain-on-Sale
Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICERS, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE UNDERLYING HOUSTON GALLERIA TRUST SUBORDINATE COMPANION LOAN IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class HG-X Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2005 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicers and the Special Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2005-LDP5 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
This Class HG-X Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class HG-X Pass-Through
Rate specified above on the Notional Amount of this Certificate immediately
prior to such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount equal to this
Certificate's pro rata share of the Class HG Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Houston Galleria Collateral Support Deficit and Certificate
Deferred Interest on the Houston Galleria Trust Subordinate Companion Loan shall
be allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Houston Galleria
Collateral Support Deficit or Certificate Deferred Interest on the Houston
Galleria Trust Subordinate Companion Loan allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Houston Galleria Trust
Subordinate Companion Loan, all as more specifically set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement, the
Certificate Account and the Distribution Accounts will be held on behalf of the
Trustee on behalf of the Holders of Certificates specified in the Pooling and
Servicing Agreement and each Master Servicer (with respect to its related
Certificate Account) or the Trustee (with respect to the Distribution Accounts)
will be authorized to make withdrawals therefrom. Amounts on deposit in such
accounts may be invested in Permitted Investments. Interest or other income
earned on funds in the Certificate Accounts will be paid to the applicable
Master Servicer as set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and the Houston
Galleria Trust Subordinate Companion Loan and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, this
Class of Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of $1,000,000 initial Notional Amount, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicers, the Special
Servicer and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Master Servicers, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicers, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders or Companion Holders, to
cure any ambiguity to the extent it does not materially and adversely affect the
interests of any Certificateholder or Companion Holder; to cause the provisions
of the Pooling and Servicing Agreement to conform or be consistent with or in
furtherance of the statements made in the Prospectus with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct or
supplement any provisions that may be inconsistent with any other provisions in
the Pooling and Servicing Agreement or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of any
Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicers, the Trustee and the Directing Certificateholder determine that the
commercial mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, such modification does
not adversely affect the status of the Upper-Tier REMIC or the Lower-Tier REMIC
as a REMIC, as evidenced by an opinion of counsel and each Rating Agency has
delivered written confirmation that such modification would not result in the
downgrade, withdrawal or qualification of any of the then current ratings of any
Class of Certificates; and to implement the modifications to the Pooling and
Servicing Agreement contemplated in Section 7.01(a); provided further, that no
such amendment changes in any manner the obligations of any Mortgage Loan Seller
without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicers, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or remove the
requirement to obtain consent of the Companion Holders, in any such case without
the consent of the Holders of all Certificates of such Class then outstanding or
the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would not
result in the downgrading, qualification or withdrawal of ratings assigned to
any Class of Certificates by any Rating Agency, amend the Servicing Standards.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC or
result in the imposition of a tax on either the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust.
The Master Servicers, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, purchase all, but
not less than all, of the Mortgage Loans and the Houston Galleria Trust
Subordinate Companion Loan and all property acquired in respect of any Mortgage
Loan and the Houston Galleria Trust Subordinate Companion Loan remaining in the
Trust Fund, and thereby effect termination of the Trust Fund and early
retirement of the then outstanding Certificates, on any Distribution Date on
which the aggregate Stated Principal Balances of the Mortgage Loans, the Houston
Galleria Trust Subordinate Companion Loan and any REO Loans remaining in the
Trust Fund is reduced to less than 1% of the aggregate Cut-off Date Principal
Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS HG-X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Notional Amount of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Notional
interest in this Amount of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
--------- --------------------------- -------------------- --------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
__________________________________
Dated: NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of this Certificate in every
particular without alteration or
enlargement or any change
whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
Attached
JPMCC 2005-LDP5
Loan # Mortgagor Name
-----------------------------------------------------------------------------------------------------------------------------------
1 Corporate Center One Owner LLC, Corporate Center Two Owner LLC, Green Crossing II Owner LP,
Resource Square Three Owner LLC, H. River Three Owner LLC, H. River Two Owner LLC, Deerfield
One Owner Corp., Timberway One Owner LP, Lakeside I Owner Corp., Corporate Center Three
Owner LLC, Satellite 600 Owner Corp., H. River One Owner LLC, Satellite 800 Owner Corp., Resource
Square One Owner LLC, Paragon Owner Corp., Lakeside II Owner Corp., Stony Point II Owner Corp.,
Deerfield Two Owner Corp., Satellite 400 Owner Corp., Resource Square Two Owner LLC, Satellite
300 Owner Corp.
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
2 HG Galleria I, II, III, L.P., SA Galleria IV, L.P.
3 Xxxxx Holdings Company L.L.C.
3.01
3.02
3.03
3.04
3.05
3.06
3.07
4 Two Grand Central Tower LLC
5 GGP Jordan Creek L.L.C. and GGP Village at Xxxxxx Xxxxx X.X.X.
0 XX0, XXX
XXX XXX Xxxxxxxxxx Center L.P., DRA CRT Orlando Central Center LLC,
7 and DRA CRT JTB Center LLC
7.01
7.02
7.03
7.04
7.05
7.06
7.07
7.08
7.09
7.10
7.11
7.12
7.13
7.14
7.15
7.16
7.17
7.18
7.19
7.20
7.21
7.22
7.23
7.24
7.25
7.26
7.27
7.28
7.29
7.30
Various
8 Rolling Wind Property LLC
0 Xxxxxxxx Xxxxxxx Property LLC
10 Courtleigh Property LLC
11 Heraldry Property LLC
12 Kingswood II Property LLC
13 Kingswood I Property LLC
14 Coventry Property LLC
15 Diamond Ridge Property LLC
CRP Holdings A-1, LLC, CRP Holdings T, L.P.
16 CRP Holdings A-1, LLC, CRP Holdings T, L.P.
17 CRP Holdings A-1, LLC, CRP Holdings T, L.P.
18 CRP Holdings A-1, LLC, CRP Holdings T, L.P.
19 CRP Holdings A-1, LLC, CRP Holdings T, L.P.
20 CRP Holdings A-1, LLC, CRP Holdings T, L.P.
21 CRP Holdings A-1, LLC, CRP Holdings T, L.P.
22 CRP Holdings A-1, LLC, CRP Holdings T, L.P.
23 CRP Holdings A-1, LLC, CRP Holdings T, L.P.
24 Net1 Las Colinas LP
MBCC 30, LLC, MBCC 35, LLC, MBCC 40, LLC, MBCC 45, LLC, MBCC East,
25 LLC, WCA 100, LLC, WCA 50, LLC, Weston Canal Center, LLC
25.01
25.02
25.03
25.04
25.05
25.06
25.07
25.08
26 Hanover Mall Partners, L.P.
Arvada Meridian LP, Boulder Meridian LP, Englewood Meridian LP, Lakewood
00 Xxxxxxxx XX, Xxxxxx Xxxxxxxx XX, Xxxxxxxx Meridian LP
27.01
27.02
27.03
28 45 Broadway Owner LLC
29 00-00 Xxxxxxxx Owner LLC
30 NC Venture, LLC
Highwoods Industrial North Carolina, LLC, 3920 Westpoint Industrial, LLC, 3929
31 Westpoint Industrial, LLC, 000 Xxxxxxxxxx Xxxxxxxxxx XXX, Xxxxxxxxx Xxxxxxxxxx Xxxxxxxx, LLC
31.01
31.02
31.03
31.04
31.05
31.06
31.07
31.08
31.09
31.10
31.11
31.12
31.13
31.14
32 FSM Spa LLC, FSM Office LLC, FSM Garage LLC
33 GP Portland Investment Company, LLC
34 Inland Western New York Portfolio, L.L.C.
34.01
34.02
34.03
34.04
34.05
34.06
34.07
34.08
34.09
34.10
34.11
34.12
34.13
34.14
34.15
34.16
34.17
34.18
34.19
34.20
34.21
34.22
35 Inland Western Worcester Lincoln Plaza, L.L.C.
36 000 Xxxxxxxx Owner LLC
37 Xxxxxxx Indianapolis A LLC
Xxxxxxxxxx Ventures, L.L.C., Nashville Ventures, L.L.C., Portland Ventures, L.L.C.,
38 Mt. Arlington Ventures, L.P., Mahwah Ventures L.P.
38.01
38.02
38.03
38.04
38.05
39 30 X. Xxxxxx Property A LLC, 30 X. Xxxxxx Property B LLC, 30 X. Xxxxxx Property F LLC
40 Inland Western Columbus Polaris, L.L.C.
41 Raleigh Officentre Associates, L.L.C.
Various
42 Fath Aspen Village, LLC
43 Xxxx Xxxx Ridge, LLC
44 Xxxx Xxxxxxx Park, LP
45 Fath Slope of Aspen, LLC
46 Fath Wyoming Hills, LLC
47 Lexington Xxxxx X.X.
48 Farmington Hills Corporate Investors-II, L.L.C.
00 Xxxxxxx Xxxxx Investors, LTD
50 USA San Xxxxxx, DST
51 MBS-Signature Palms, Ltd.
52 SRH Granite Run LLC
53 Case Creekwood Apartments Limited Partnership
54 Houston Coronado Villas Limited Partnership
55 KPartners Hospitality Texas I LP
55.01
55.02
55.03
55.04
56 Cypress Veranda Limited Partnership II
57 ICG Penn Branch Associates, LLC
58 Foundry Parcel Fifteen Associates, LLC
59 Guardian Westwood LLC
60 A&L 444 LLC, GMD 444 LLC, DEM 444, LLC
61 Xxxxx Station, LLC
62 XX Xxxxxxxxxx Limited Partnership
63 Baywoods of Annapolis, LLC
USA Sonterra 1, LLC, USA Sonterra 2, LLC, USA Sonterra 3, LLC,
USA Sonterra 4, LLC, USA Sonterra 5, LLC, USA Sonterra 6, LLC,
USA Sonterra 7, LLC, USA Sonterra 8, LLC, USA Sonterra 9, LLC,
USA Sonterra 10, LLC, USA Sonterra 11, LLC, USA Sonterra 12,
LLC, USA Sonterra 13, LLC, USA Sonterra 14, LLC, USA Sonterra
15, LLC, USA Sonterra 16, LLC, USA Sonterra 17, LLC, USA
Sonterra 18, LLC, USA Sonterra 19, LLC, USA Sonterra 20, LLC,
USA Sonterra 21, LLC, USA Sonterra 22, LLC, USA Sonterra 23,
LLC, USA Sonterra 24, LLC, USA Sonterra 25, LLC, USA Sonterra
26, LLC, USA Sonterra 27, LLC, USA Sonterra 28, LLC, USA
64 Sonterra 29, LLC, USA Sonterra 30, LLC, USA Sonterra 31, LLC
65 Westwood Retail, LLC, Westwood Seagull, LLC
66 PMAT Melbourne, L.L.C.
66.01
66.02
66.03
67 American Opportunity for Housing - San Antonio Portfolio I, LLC
67.01
67.02
67.03
67.04
00 Xxxxxxxxxx Xxxxx Xxxxxxxx X, LLC and Cottonwood Xxxxx Mountain H, LLC
00 Xxxxxxxx Xxxxxx Xxxxxx, LLC
70 Aslan Centerpoint, LLC, Aslan Chalkville, LLC, Aslan Terrace, LLC
70.01
70.02
70.03
71 Feasterville Realty Associates, L.P.
00 Xxxxxx Xxxx Xxxxx Office Partners, LLC
73 Ballantrae Investments, LLC
74 Case-Winchester Limited Partnership
75 Zero Plus Services, Inc.
76 Los Ranchos FSPE LLC
77 HB Properties L.P., HBA Properties, L.P. and HBP Properties, L.P.
77.01
77.02
77.03
78 Copper Beech Townhome Communities Fifteen , LLC
79 Hometown Whispering Pines Largo, L.L.C.
80 Sylmar Shopping Center, LLC
81 SPI Willow Pass, L.P.
82 Continental 105 Fund LLC
00 Xxxxxxxxx Xxxxxxxx Xxxxxx, XX, XX Alex I Properties, LLC
84 Country Club Extended Stay Suites, L.L.C.
85 Hillcrest/Oakwood Property, LLC
85.01
85.02
86 Oxford Properties, L.L.C.
87 Xxxxxx Opera House Associates, LLC
88 T&T San Xxxx, LLC
89 AW WPC (KY) LLC
90 Plastic II (IL) LLC
91 Auto Club Lamppost, LLC
92 DJD Executive Park, LLC, Welsh Executive Park, LLC and MS/TB KC, LLC
93 Columbus North Associates, L.P., Columbus Ave. GPD Investment, L.P.
94 Gila Shopping Center, LP
95 Lakeside Resources, LLC
96 Xxxxxx Xxxxx Dynasty, LLC
97 RS Sterling Hills Apartments 1-14, LLC, et al
98 Gateway Business Center, L.P.
98.01
98.02
98.03
99 Xxxxxx Pottsgrove Partners, L.P.
100 PTT Properties, LLC
000 Xxxx Xxxxxxxxxx Property, LLC and Orchard Bloomfield Properties, LLC
000 X Xx. Xxxxxxxxx, XXX, Xxxxxx Pavilion, LLC, Nardo III, LLC
000 Xxxxxxxx Xxxxxxxxxx, L.P.
000 Xxxx Xxxxx-0000 XxxXxxxxx, LLC
105 Codman Portland Associates, LP
106 269 South LaFayette Park Place, LLC, Santee Court Phase II Owner LLC
107 7150 Terra Vista LLC
108 Foxhill Apartments LLC
109 Xxxxxxxxx San Xxxxxx, L.P.
110 Shops at Riverplace, LLC
000 Xxxxx Xxxx Xxxxxx, LLC
000 XxxxXxxx IV, LLC
113 Lynchburg Partners, LLC
000 Xxxxxx Xxxxx, X.X.X.
000 Xxxx xx Xxxxxx Mobile Home Park
116 XXXX LLC
116.01
116.02
000 XX Xxxxxxxxxxx, X.X.
000 Xxxxxx Xxxxxx Equities LLC, 000 Xxxxxx Xxxxxx Xxxxxxxx LLC,
CH 000 Xxxxxx Xxxxxx Equities LLC, Lemad 000 Xxxxxx Xxxxxx
118 Equities LLC, 000 Xxxxxx Xxxxxx Xxxxxx LLC
119 LSI I, LLC
120 Grayslake Eastwood, LLC and Eastwood Investors, LLC
000 Xxxxx Xxxx Xxxxxx Xxxxxxx LLC
122 SGMP/XxXxxxxxx Ranch Investors, L.P.
123 Gatesco Q.M., Ltd.
124 00 Xxxxxxxx Xxxxx Partners, L.P.
125 GP Vermont Industrial I, L.L.C.
000 Xxxxxxxx Xxxxx Associates LLC
127 York Value Center Limited Partnership
128 Sunnycrest Real Properties, LLC
129 707 Sheridan Limited Partnership
000 Xxxxxxx Xxxx Redevelopment, L.L.C.
131 MIHP, Ltd.
132 BHI Property LLC
133 Xxxxxx Family Investments, LLC
134 Xxxxx Properties, LLC
000 Xxxxxxxxxxx Xxxxxxxx Xxxxxx xx Xxxxxxxx, Ltd.
000 Xxx Xxxxxx Xxxx Xxxxxx, LLC
000 Xxx Xxxxx Xxxxxxxx, Ltd.
000 Xxxxx Xxxxxx Limited Partnership
000 XXX Xxxxx Xxxxxx Associates, LLC
140 PCS Development 9, LLC
000 Xxxxxx Xxxxxx Apartments L.L.C.
142 H-K Housing Partners, Ltd.
000 Xxxxxxxx Xxxxxxxx, LLC
000 Xxxx Xxx Xxxxxx, X.X.X.
145 Willow Creek 2 Group Limited Partnership
146 Ft. Worth Hawaii NB, LLC, Fairmont Hawaii, LLC, and Xxxxxxxxxxxx XX, LLC
147 Middletown Professional Properties, L.L.C.
148 Bhagat MD, LLC
149 Tylersville Dynasty, LLC
150 Beaumont Development Group, L.P.
151 Prias Prairie View, L.L.C. and Prairie View Business Center, LLC
152 Gateway I, L.L.C.
153 RFB West Jefferson, LLC
000 Xxxxxxx Xxxx Xxxx Homes, LLC
155 000 Xxxxxxx Xxxxxx Corporation
156 Heartland Wanaka Limited Partnership
Hobart 1031, L.L.C., Xxxxxx-Xxxxxxxxx-1, L.L.C., Xxxxxx-Xxxxxxxxx-2, L.L.C., Xxxxxx-Xxxxxxxx Trust,
L.L.C., Hobart-Doreski-1, L.L.C., Hobart-Doreski-2, L.L.C., Hobart-Hunter-1, L.L.C., Hobart-Hunter-2,
L.L.C., Xxxxxx-Xxxxxx, L.L.C., Hobart-Kinstetter Trust, L.L.C., Xxxxxx-Xxxxxx, L.L.C., Xxxxxx-Xxxxxxxx,
L.L.C., Hobart-Lacert, L.L.C., Xxxxxx-Xxxxxxx, L.L.C., Hobart-Malin, L.L.C., Hobart-McHenney, L.L.C.,
Hobart-Minit Car Wash, L.L.C., Xxxxxx-Xxxxx, L.L.C., Xxxxxx-Xxxxxxx, L.L.C., Xxxxxx-Xxxx Trust, L.L.C.,
Xxxxxx-Xxxxxxx, L.L.C., Hobart-Seventy Nine Xxxxxxxx Realty Trust, L.L.C., Xxxxxx-Xxxxxxx, L.L.C.,
157 Xxxxxx-Xxx Trust, L.L.C., Hobart-York Trust, L.L.C.
158 Tall Timber Limited Partnership
000 Xxxxxxxx Xxxxxx, Inc.
160 AZFMJ, LLC
161 Vista 0000 XX 0000, Ltd.
162 Tennessee Partners XV, L.P.
163 PCS Development 7, LLC
164 Xxxxxxxx Family's Store-It-All of Plantation, L.L.C.
165 I and U Management LLC
166 5256 Arbor Vitae,LLC
167 Crown Hill Associates
168 Plaza/Park I, Ltd.
169 Roscoe Building Limited Partnership
170 Bryant Manor, LLC
171 PCS Development 6, LLC
000 Xxxxx Xxxxxx, X.X.X.
173 NEC FM 1488 & FM 2978, Ltd.
000 Xxxxxx Xxxxx II Limited Partnership
175 Coach Country, LLC
176 Xxxx & Xxxxxxxxx MRA, LP
000 X & X Xxxxxxx Xxxxxx, LLC
000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx, LLC
000 Xxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxx Xxxxx Road, L.L.C.
180 GHGregg LLC, Xxxxxx X. Xxxxx, Melgaby, LLC
181 Xxxxxxx Xxxxx Investments, LLC
182 PCS Development 8, LLC
183 Xxxxxxxx Dynasty, LLC
184 AMC Xxxxxxxx Train Court Associates, LP
185 Xxxxx X. Xxxxx and Xxxxx X. Xxxxx
186 Rockville Dynasty, LLC
000 000-000 X Xxxxx Xxxxxx Limited Partnership
188 Lucky Investment Group, LLC, Ballantrae Investments, LLC
000 Xxx Xxxxx at Legacy Plaza, Ltd.
190 Ivywood 67 LLC
191 Crawfordsville Dynasty, LLC
192 Mountain View MHP, LLC
193 Clarksville Dynasty, LLC
194 Montebello MHP, LLC
195 Alexandria Dynasty, LLC
HGTSCL HG Galleria I, II, III, L.P., SA Galleria IV, L.P.
-----------------------------------------------------------------------------------------------------------------------------------
Loan # Property Address
------------------------------------------------------------------------------------------------------------------------------------
1 Various
1.01 0000 Xxxxxx Xxxx
1.02 0000 Xxxxxx Xxxx
1.03 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx
1.04 0000 Xxxx Xxx Xxxxx Xxxx
1.05 0000 Xxxx Xxx Xxxxx Xxxx
1.06 00000 Xxxxxx Xxxx
1.07 00000X Xxxxxx Xxxx
1.08 0000 Xxxxx Xxx Xxxxxx
1.09 00000 Xxxxxxxxx Xxxxx
1.10 00000 Xxxxxxxxx Xxxxx
1.11 00000 Xxxxxxxxx Xxxxx
1.12 0000 Xxxxxxxxxxx Xxxx
1.13 0000 Xxxxxxxxx Xxxxxxxxx
1.14 0000 Xxxxxxxxx Xxxxxxxxx
1.15 0000 Xxxxxxxxx Xxxxxxxxx
1.16 0000 Xxxxxxxxx Xxxxxxxxx
1.17 0000 Xxxxxx Xxxx Xxxxxx
1.18 11310 and 11410 Greens Crossing
1.19 00000 Xxxxxxxx Xxxxxxx
1.20 00000 Xxxxxx'x Xxxxxxx Xxxx
1.21 12000 Xxxxxxxx Xxxxxxx
0 0000 Xxxxxxxxxx Xx
3 Various
3.01 0000 0xx Xxxxxx
3.02 0000 Xxxxxxx Xxxxxx
3.03 000 Xxxxx Xxxx Xxxxxx
3.04 0000 Xxxxxx Xxxxxx
3.05 0000 Xxxxxxx Xxxxxx
3.06 0000 0xx Xxxxxx
3.07 000 Xxxxxxx Xxxxxx X
4 000 Xxxx 00xx Xxxxxx
5 000 Xxxxxx Xxxxx Xxxxxxx
6 000 Xxxxx Xxxxx Xxxxxx
7 Various
7.01 00 Xxxxxxxxxx Xxxxx
7.02 00 Xxxxxxxxxx Xxxxx
7.03 00 Xxxxxxxxxx Xxxxx
7.04 00 Xxxxxxxxxx Xxxxx
7.05 0000 Xxxxxxxxxx Xxxxxxx
7.06 0000 Xxxxxxxxxx Xxxxxxx
7.07 0000 Xxxxxxx Xxxxxxxxx
7.08 0000 Xxxxxx Xxxx
7.09 000 Xxxxxxxx Xxxx
7.10 0000 Xxxxxxx Xxxxxxxxx
7.11 0000 Xxxxxx Xxxx
7.12 0000 XxXxxxx Xxxxx
7.13 0000 Xxxxxxx Xxxxxxxxx
7.14 0000 Xxxxxx Xxxx
7.15 0000 Xxxxxxx Xxxxxxxxx
7.16 0000 Xxxxxxx Xxxxxxxxx
7.17 0000 Xxxxxx Xxxx
7.18 0000 Xxxxxxxx Xxxx
7.19 0000 Xxxxxxxxx Xxxxxx Xxxxx
7.20 0000 Xxxxxxxx Xxxxx
7.21 0000 Xxxxxxx Xxxxxxxxx
7.22 000 Xxxxxxxx Xxxx
7.23 0000 Xxxxxxxx Xxxx
7.24 0000 XxXxxxx Xxxxx
7.25 0000 Xxxxxxxx Xxxx
7.26 0000 Xxxx Xxxxxxx
7.27 0000 Xxxxxx Xxxx
7.28 0000 Xxxx Xxxxxxx
7.29 0000 Xxxxxxxxx Xxxxxx Xxxxx
7.30 0000 Xxxxxxxxx Xxxxxxx
Various
8 2420 Xxxxxx Xxxx
0 0 Xxxxxxxxxx Xxxxx
10 0000 Xxxxxxxxx Xxxxx
11 0000 Xxxxxxx Xxxx
12 0000 Xxxxxx Xxxx
13 0000 Xxxxxxxxxxx Xxxxx
14 2564 Xxxxxxxxx Xxxxx
00 0 Xxxxxxxxxx Xxxxx
Various
16 000-000 Xxxxxxxxx Xxxxxxx and 000-000 Xxxxxxxxx Xxxxxx Xxxxxx Xxxxx
17 00000 Xxxx Xxxxxxxxx Xxxx
18 0000 Xxxxx XxXxxxxx Xxxxxxxxx
19 0000 Xxxxxx Xxxxxxx
20 14040 Park Center Xxxx
00 00000 Xxxxxx Xxxx Xxxxx
22 0000-0000 Xxxx Xxxxxxxxx Xxxxxx and 000-000 Xxxxxxxxx Xxxxxxxx Xxxx Xxxx
23 9082-9090 Bond, 9201-9219 Quivira, and 9100-9136 Cody
24 6535 and 0000 Xxxxx Xxxxx Xxxxxxx 000
25 Various
25.01 0 Xxxxxx Xxxx Xxxxx
25.02 00 Xxxxxxxxxx Xxxxx
25.03 00 Xxxxxxxxxx Xxxxx
25.04 00 Xxxxxxxxxx Xxxxx
25.05 00 Xxxxxxxx Xxxx
25.06 000 Xxxxxxxx Xxxx
25.07 00 Xxxxxxxxxx Xxxxx
25.08 Xxx Xxxxxxxxx Xxxxx
00 0000 Xxxxxxxxxx Xxxxxx
27 Various
27.01 0000 Xxxx 00xx Xxxxxx
27.02 00000 Xxxx 00xx Xxxxxx
27.03 0000 Xxxxx Xxxxxx Xxxxxx
28 45 Broadway
29 32 & 42 Broadway
30 900, 920, 930, 000 Xxxx Xxxxxx Xxxxx and 0000 Xxxxxxx Xxxxx
31 Various
31.01 0000 Xxxxxxx Xxxxx
31.02 0000 Xxxxxxx Xxxxx
31.03 0000 Xxxxx Xxxxxxxx Xxxxxx
31.04 000 Xxxxxxxxxx Xxxx Xxxxx
31.05 000 Xxxxxxxxxx Xxxx Xxxxx
31.06 000 Xxxxxxxxxx Xxxx Xxxxx
31.07 000 Xxxxxxxxxx Xxxx Xxxxx
31.08 000 Xxxxxxxxxxx Xxxxx
31.09 000 Xxxxxxxxxxx Xxxxx
31.10 0000 Xxxxxxxxx Xxxxxxxxx
31.11 0000 Xxxxxxxxx Xxxxxxxxx
31.12 0000 Xxxxxxxxx Xxxxxxxxx
31.13 0000 Xxxxxxxxx Xxxxxxxxx
31.14 0000 Xxxxxx Xxxxx
32 0000 Xxxxxxxx Xxxxxx
33 000 Xxxxxxxx Xxxxxxx
34 Various
34.01 0000 Xxxxxxx Xxxx
34.02 0000 Xxxxx Xxxx
34.03 000 Xxxxxx Xxxx
34.04 000 Xxxx Xxxxx Xxxx
34.05 0000 Xxxx Xxxx Xxxxxx
34.06 0000 Xxxxxxx Xxxx
34.07 0000 Xxxxx Xxxxxx
34.08 000 Xxxxxx Xxxx
34.09 0000 Xxxxxxxx Xxxxx
34.10 0000 Xxxxx Xxxx
00.00 00 Xxxxxxx Xxxxxx
34.12 000 Xxxxxxxx Xxxxxx
34.13 0000 Xxxx Xxxxxx
34.14 000 Xxxxx Xxxxx Xxxxxx
34.15 0000-0000 Xxxxx Xxxx
34.16 000 Xxxxx Xxxxxxx Xxxxxx
34.17 0000 Xxxxx Xxxxxx Xxxxxxxxx
34.18 0000 Xxxx Xxxxxx
34.19 0000 Xxxxxxx Xxxx
34.20 000 Xxxx Xxxxx Xxxxxx
34.21 000 Xxxx Xxxx Xxxxxx
34.22 00000-00 Xxxxx Xxxx
35 000 Xxxxxxx Xxxxx
00 000 Xxxxxxxx
37 0000 Xxxxxxx Xxx & 0000 Xxxxxxx Xxxxx
38 Various
38.01 000 Xxxxx 00 Xxxxx
38.02 00 Xxxxxx Xxxxxxxxx
38.03 0000 Xxxxxx Xxx
38.04 0 Xxxxxxxx Xxxx
38.05 0000 Xxxxxxxxxx Xxxx
00 00 Xxxx Xxxxxx
40 1021-1051 Gemini Parkway
41 25300 - 00000 Xxxxxxxxx Xxxx
Various
42 0000 Xxxxxx Xxxxx
43 0000 Xxxxx Xxxx Xxxxxx
44 5757 Preston View Boulevard
45 0000 Xxxxx Xxxx Xxxxxx
46 0000 Xxxxxxx Xxxxxx
47 601 & 000 Xxxxxxxx Xxxxxxx
48 27555 Executive Drive
49 SWC La Brea Avenue & Rodeo Road
50 0000 Xxxxxx Xxxxx
51 14515 Briar Xxxxxx Xxxxx
00 0000 Xxxxxxxxx Xxxxx
53 0000 X. 00xx Xxxx Xxxxxx
00 0000 Xxxxx at 610 Drive
55 Various
55.01 0000 Xxxxxx Xxxxx
55.02 0000 00xx Xxxxxx
55.03 0000 Xxxxxxxxxxxxx Xxxx
55.04 0000 Xxxxxxxxxxxxx Xxxx
56 0000 Xxxxxxxxxxx Xxxxxxxxx
57 0000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxxxx
00 000 Xxxxxxxxx Xxxxxx
59 0000 Xxxxxxxx Xxxxxx Xxxxx
60 444 Park Avenue South
61 0 Xxxxxxx Xxxxx
00 00000 Xxxxxxxxxx
63 0000 Xxx Xxxxx Xxxxx
64 000 Xxxxxxxxxx Xxxx
65 0000-0000 Xxxxxxxx Xxxx Xxxxxxxxx
66 Various
66.01 0000-0000 Xxxxx XX Xxxxxxx 0
66.02 0000 Xxxxx XX Xxxxxxx 0
66.03 0000 Xxxx Xxx Xxxxx Xxxxxx
67 Various
67.01 000 Xxxxxx Xxxx
67.02 0000 Xxxx Xxxxxx
67.03 0000 Xxxxxxx Xxxx
67.04 0000 Xxxxxxx Xxxx
68 0000 Xxxxx Xxxx Xxxxx Xxxxxx Drive
69 000 Xxxxxx Xxxxxx
70 Various
70.01 0000-X Xxxxxxx Xxxx
70.02 00 Xxxxxxx Xxxxx
70.03 137 Town and Country Circle
71 100, 150, and 000 Xxxx Xxxxxx Xxxx
00 506, 509 and 515 Enterprise
73 0000 Xxxxxxxx Xxxx
74 5509 Southwest 0xx Xxxxxx
00 0000-0000 Xxxxxx Xxxxxx
00 00000 Xxxxxx Xxxx
77 Various
77.01 00000 Xxxxxxxx Xxxx
77.02 0000 Xxxxxxxxx Xxxx
77.03 0000 Xxx Xxxx Xxxx
78 000 Xxxx Xxxxx Xxxxxx
79 0000 000xx Xxxxxx Xxxxx
80 00000 Xxxxxxxxx Xxxxxx
81 1675 Willow Pass Xxxx
00 0000 Xxxxxxxx Xxxx Xxxx
83 10930 and 00000 Xxx Xxxxx Xxxxx Xxxx, 00000 and 00000 Xxx Xxxxx Xxxxx Xxxx
84 0000 Xxxxxxxx
85 Various
85.01 00000 00 Xxxx Xxxx
85.02 0000 Xxxxxx Xxxxxx
86 0000 Xxxx 000xx Xxxxxxx
87 000 Xxxx Xxxxxx and 00-00 Xxxxxx Xx.
88 000 Xxxxx Xxxxxxxxx Xxxxxx
89 000 Xxx Xxx
90 000 Xxxxxxxxx Xxxxx Xxxxx
91 5225 Auto Club Drive
92 1800 - 0000 Xxxxx Xxxxxxxxxx Xxxxxx
93 Xxxxxxxxxxx Xxxxxxxx Boulevard at Xxxxxx Ave.
94 0000-0000 Xxxx X.X. Xxxxxxx 70
95 1471-1651 Xxxx Xxxxxxxx Xxxxxxxxx
00 0000 Xxxxx Xxxxx Xxxx 135
97 0 Xxxxxxxx Xxxx
98 Various
98.01 0000 Xxxxxx Xxxxxx
98.02 0000 Xxxxxxx Xxxxxx
98.03 0000 Xxxxxxx Xxxxxx
99 000 Xxx Xxxxxx
100 14410- 00000 Xxxx Xxxxx Xxxxxx, 411- 547 Sable Boulevard, 14311- 00000 Xxxx Xxxxxx Xxxxxx
101 6800 Orchard Lake Road
102 702 - 000 Xxxxxx Xx.
103 000 Xxx Xxxxx Xxxxx
104 0000 XxxXxxxxx Xxxxxxxxx
105 000-000 Xxxxxxxx Xxxxxx, 236-252A Spring Street, 00 Xxxxx Xxxxxx, 00 Xxxxxx Xxxxxx
106 0000 Xxxxx Xxxxxx
107 7150 North Terra Vista Dr.
108 1900 South Xxxxxxxx Xxxxxx
000 XXX Xxxxxxxx XX 67 and Xxxxxx Xxxxxxxxx
000 00000 Xxxxx Xxxx 2222
111 445 Southwest 41st Street and 0000 Xxxx Xxxxxx Xxxxxxxxx
112 8461, 8471, 8501 & 0000 Xxxxxxxx Xxxxx
113 3412 Xxxxxxxxx Xxxx
000 0000 Xxxx Xxxx Xxxxxxxxx
115 000 Xxxx Xxxxxx Xxxxxx
116 Various
116.01 0000-0000 Xxxxx Xxxxxx
116.02 2701-2815 Xxxxx Xxxxxxxxxx Xxxxx
000 00000 Xxxxxxxxxxx
118 000 Xxxxxx Xxxxxx
119 10901 Xxxx Xxxxxx Xxxxx
000 0000 Xxxx 00xx Xxxxxx
121 000 Xxxx Xxxxxx Xxxxxx
122 0000-0000 Xxxxx 00xx Xxx
123 10201 Telephone Road
124 00 Xxxxxxxx Xxxxx
125 7552 Indian Xxxxxx Xxxx
000 0000 Xxxxxx Xxxx
127 0000 Xxxxx Xxxxx Xxxxxx
128 0000 Xxxxxxxxxx Xxxxx
129 000 Xxxx Xxxxxxxx Xx
130 4950 Xxx Xxxxxx
000 00000 Xxxxxxx Xxxx
132 00000 Xxxxx Xxxxxxxx Xxxxxx
133 3200 & 0000 Xxxx Xxxxxx Xxxx
134 1981 Xxxxxxxx Xxx
000 0000 Xxxxxxxx Xxxx
136 000 Xxxxx Xxxxxxx Xxxxxxxxx
137 0000 Xxxx Xxxxxxxxx Xxxx
138 0000 Xxxxx Xxxxxx Xxxx
139 0000-0000 Xxxxx Xxxxxx
140 0000 Xxxxxx Xxxxxx
141 9551 Xxxx 00xx Xxxxxx
000 0000 Xxxxx Xxxx
143 0000 Xxxxxxxx Xxxx Xxxx
144 0000 Xxxxx Xxxxxxxx Xxxxxx
145 3411-3801 Willow Xxxx Xxxxx
000 0000-0000 Xxxxx Xxxxx Xxxxxx
147 124 Sleepy Xxxxxx Xxxxx
000 0000 Xxxxx Xxxxxxx Xxxx
149 0000 Xxx Xxxx
150 4545 Bissonnet
151 10300-10338 Xxxxxxxxx Xxxxxxx Xxxx Xxxx
000 000 Xxxxx Xxxxxxx Xxxxx
153 247 Mt. Jefferson Xxxxx Xxxx Xxxx
000 000 Xxxxx Xxxx Xxxxxx
155 000 Xxxxxxx Xxxxxx
156 0000 Xxxxx Xxxxxxxxx
157 000 Xxxx Xxx Xxxxx Xxxx
158 0000 Xxxxxx Xx
159 0000 Xxxxxx Xxxxx
160 0000 X. XxXxxxxxxx Xxxxx
161 0000 XX 0000 Xxxx Xxxx
162 000 Xxxxx Xxxxxxxxx Xx
163 0000 Xxxxxx Xxxxxx
164 0000 XX 00xx Xxxxx
165 0000 Xxxx Xxxxxx
166 4840 and 0000 X. Xxxxxxxxxx Xxx.
167 000 Xxxxx Xxxx Xxxx
168 00000 Xxxxxxxxxx Xxxxxxx
169 000 Xxxx Xxxxxx Xxxxxx
170 000 Xxxxx 00xx Xxxxxx
171 0000 Xxxxxx Xxxxxx
172 3300 Palm Drive
173 6606 FM 1488
174 10620 Xxxxxxxxxx Xxxx
000 0000 000xx Xxxxxx Xxxx
176 000 Xxxx Xxxx Xxxxxx
177 000 Xxxxxxxxxx Xxxxx
178 17377 Xxxx Xxxxxx Xxxxxxxxx
000 000 Xxxx Xxxxx Xxxx 436
180 9132 Xxxxxxxxxxxx Xxxx
000 0000 Xxxxx Xxxxxxxxx Xxxxxx
182 00000 Xxxxxxx Xxxxxx
183 2903 - 0000 Xxxxxxxx Xxxx
184 10830 Train Court
185 000 Xxxxxxxxx Xxxxxxxxx
186 0000 Xxxxxxxxx Xxxx
187 410-416 North Xxxxx Xx
000 000 Xx. Xxxxxx Xxxxxx
189 0000 Xxxxxxxxx Xxxxx
190 1556 Xxxxxx Xxxxxx
000 0000 Xxxxx Xxxxxxxxxx Xxxxxx
192 000 Xxxxxxxxx Xxxxx
193 000 Xxxx Xxxxx xxx Xxxxx Xxxxxxx
194 000 Xxxxx Xxxxxxxxx Xxxxxx
195 1111 North Park Avenue
HGTSCL 0000 Xxxxxxxxxx Xx
------------------------------------------------------------------------------------------------------------------------------------
Xxxx # Xxxx Xxxxx Zip Code County
------------------------------------------------------------------------------------------------------------------------------------
1 Various Various Various Various
1.01 Xxxxxxxxxxx XX 00000 Wake
1.02 Xxxxxxxxxxx XX 00000 Wake
1.03 Xxxxx XX 00000 Hillsborough
1.04 Xxxxx XX 00000 Hillsborough
1.05 Xxxxx XX 00000 Hillsborough
1.06 Xxxxxxxxxx XX 00000 Xxxxxx
1.07 Xxxxxxxxxx XX 00000 Xxxxxx
1.08 Xxxxx XX 00000 Hillsborough
1.09 Xxxxx XX 00000 Hillsborough
1.10 Xxxxx XX 00000 Hillsborough
1.11 Xxxxxxx XX 00000 Orange
1.12 Xxxxxxxxxxx XX 00000 Jefferson
1.13 Xxxxxx XX 00000 Gwinnett
1.14 Xxxxxx XX 00000 Gwinnett
1.15 Xxxxxx XX 00000 Gwinnett
1.16 Xxxxxx XX 00000 Gwinnett
1.17 Xxxxxxxx XX 00000 Richmond City
1.18 Xxxxxxx XX 00000 Xxxxxx
1.19 Xxxxxxx XX 00000 Orange
1.20 Xxxxxxx XX 00000 Xxxxxx
1.21 Xxxxxxx XX 00000 Orange
2 Xxxxxxx XX 00000 Xxxxxx
0 Xxxxxxx XX Various King
3.01 Xxxxxxx XX 00000 King
3.02 Xxxxxxx XX 00000 King
3.03 Xxxxxxx XX 00000 King
3.04 Xxxxxxx XX 00000 King
3.05 Xxxxxxx XX 00000 King
3.06 Xxxxxxx XX 00000 King
3.07 Xxxxxxx XX 00000 King
4 Xxx Xxxx XX 00000 Xxx Xxxx
0 Xxxx Xxx Xxxxxx XX 00000 Xxxxxx
0 Xxxxxxx XX 00000 Xxxx
7 Various Xxxxxxx Xxxxxxx Xxxxxxx
0.00 Xxxxxxx XX 00000 Shelby
7.02 Xxxxxxx XX 00000 Shelby
7.03 Xxxxxxx XX 00000 Shelby
7.04 Xxxxxxx XX 00000 Shelby
7.05 Xxxxxxx XX 00000 Shelby
7.06 Xxxxxxx XX 00000 Shelby
7.07 Xxxxxxx XX 00000 Orange
7.08 Xxxxxxx XX 00000 Orange
7.09 Xxxxxxx XX 00000 Orange
7.10 Xxxxxxx XX 00000 Orange
7.11 Xxxxxxx XX 00000 Orange
7.12 Xxxxxxx XX 00000 Orange
7.13 Xxxxxxx XX 00000 Orange
7.14 Xxxxxxx XX 00000 Orange
7.15 Xxxxxxx XX 00000 Orange
7.16 Xxxxxxx XX 00000 Orange
7.17 Xxxxxxx XX 00000 Orange
7.18 Xxxxxxx XX 00000 Orange
7.19 Xxxxxxx XX 00000 Orange
7.20 Xxxxxxx XX 00000 Orange
7.21 Xxxxxxx XX 00000 Orange
7.22 Xxxxxxx XX 00000 Orange
7.23 Xxxxxxx XX 00000 Orange
7.24 Xxxxxxx XX 00000 Orange
7.25 Xxxxxxx XX 00000 Orange
7.26 Xxxxxxxxxxxx XX 00000 Xxxxx
7.27 Xxxxxxx XX 00000 Orange
7.28 Xxxxxxxxxxxx XX 00000 Xxxxx
7.29 Xxxxxxx XX 00000 Orange
7.30 Xxxxxxxxxxxx XX 00000 Xxxxx
Xxxxxxxxx XX 00000 Baltimore
8 Baltimore MD 21244 Baltimore
9 Baltimore MD 00000 Xxxxxxxxx
00 Xxxxxxxxx XX 00000 Baltimore
11 Baltimore MD 00000 Xxxxxxxxx
00 Xxxxxxxxx XX 00000 Baltimore
13 Baltimore MD 00000 Xxxxxxxxx
00 Xxxxxxxxx XX 00000 Baltimore
15 Xxxxxxxxx XX 00000 Baltimore
Various Various Xxxxxxx Xxxxxxx
00 Xxxxxxxxx XX 00000 Platte
17 Parker CO 80134 Xxxxxxx
18 Xxxxxxxx XX 00000 Sonoma
19 Xxxxxx XX 00000 Collin
20 Xxxxxxx XX 00000 Fairfax
21 Xxxxxxx XX 00000 Xxxxxx
22 Xxxxxxxxx XX 00000 Platte
00 Xxxxxxxx Xxxx XX 00000 Xxxxxxx
24 Xxxxxx XX 00000 Dallas
25 Various NJ Various Various
25.01 Xxxxxx XX 00000 Somerset
25.02 Xxxxxx XX 00000 Somerset
25.03 Xxxxxx XX 00000 Somerset
25.04 Xxxxxx XX 00000 Somerset
25.05 Xxxxxxxx XX 00000 Somerset
25.06 Xxxxxxxx XX 00000 Somerset
25.07 Xxxxxx XX 00000 Somerset
25.08 Xxxxxxxx XX 00000 Somerset
26 Xxxxxxx XX 00000 Plymouth
27 Xxxxxxx XX Xxxxxxx Xxxxxxx
00.00 Xxxxxx XX 00000 Jefferson
27.02 Xxxxxxxx XX 00000 Jefferson
27.03 Xxxxxxxxx XX 00000 Arapahoe
28 Xxx Xxxx XX 00000 New York
29 Xxx Xxxx XX 00000 Xxx Xxxx
00 Xxxxxxx XX 00000 Wake
31 Various Xxxxxxx Xxxxxxx Xxxxxxx
00.00 Xxxxxxxx XX 00000 Henrico
31.02 Xxxxxxxx XX 00000 Henrico
31.03 Xxxxxxxx XX 00000 Henrico
31.04 Xxxxx Xxxx XX 00000 Xxxxxxxx
31.05 Xxxxx Xxxx XX 00000 Xxxxxxxx
31.06 Xxxxx Xxxx XX 00000 Xxxxxxxx
31.07 Xxxxx Xxxx XX 00000 Xxxxxxxx
31.08 Xxxxx Xxxx XX 00000 Xxxxxxxx
31.09 Xxxxx Xxxx XX 00000 Xxxxxxxx
31.10 Xxxxxxx-Xxxxx XX 00000 Xxxxxxxx
31.11 Xxxxxxx-Xxxxx XX 00000 Xxxxxxxx
31.12 Xxxxxxx-Xxxxx XX 00000 Xxxxxxxx
31.13 Xxxxxxx-Xxxxx XX 00000 Xxxxxxxx
31.14 Xxxxxxx-Xxxxx XX 00000 Xxxxxxxx
32 Xxxxx XX 00000 Miami - Dade
33 Xxxxxxx XX 00000 Middlesex
34 Various NY Various Various
34.01 Xxxxxxxxx XX 00000 Erie
34.02 Xxxx Xxxxxx XX 00000 Erie
34.03 Xxxxxxxxx XX 00000 Monroe
34.04 Xxxxxxxxxxx XX 00000 Monroe
34.05 Xxxxxxx XX 00000 Genesee
34.06 Xxxxxxx XX 00000 Erie
34.07 Greece NY 14616 Monroe
34.08 Xxxx Xxxxxx XX 00000 Erie
34.09 Xxxxxxx XX 00000 Erie
34.10 Xxxxxxxxxxx XX 00000 Ontario
34.11 Xxxxxxxxx XX 00000 Erie
34.12 Xxxxxx XX 00000 Columbia
34.13 Xxxxxxx XX 00000 Erie
34.14 Xxxxx XX 00000 Cattaraugus
34.15 Xxxxxxxxxxx XX 00000 Erie
34.16 Xxxxxxxx XX 00000 Niagara
34.17 Xxxxx Xxxxxx XX 00000 Erie
34.18 Xxxxxxxxx XX 00000 Monroe
34.19 Xxxxx Xxxxx XX 00000 Monroe
34.20 Xxxxxxx XX 00000 Erie
34.21 Xxxxxxx XX 00000 Genesee
34.22 Xxxxxxxxx XX 00000 Cattaraugus
35 Xxxxxxxxx XX 00000 Worcester
36 Xxx Xxxx XX 00000 Xxx Xxxx
00 Xxxxxxxxxxxx XX 00000 Xxxxxx
38 Various Various Various Various
38.01 Xxxxxx XX 00000 Bergen
38.02 Xx. Xxxxxxxxx XX 00000 Xxxxxx
38.03 Xxxxxxxxx XX 00000 Davidson
38.04 Xxxxxxxxxxx XX 00000 Cumberland
38.05 Xxxxxxxxxx XX 00000 Montgomery
39 Xxxxxxx XX 00000 Xxxx
40 Xxxxxxxx XX 00000 Delaware
41 Xxxxxxxxxx XX 00000 Oakland
Various Various Xxxxxxx Xxxxxxx
00 Xxxxxxxxxx XX 00000 Xxxxxxxx
43 Xxxxxxxxxx XX 00000 Xxxxxxxx
44 Xxxxxx XX 00000 Dallas
45 Xxxxxxxxxx XX 00000 Xxxxxxxx
46 Xxxxxx XX 00000 Montgomery
47 Xxxxx XX 00000 Collin
48 Xxxxxxxxxx Xxxxx XX 00000 Oakland
49 Xxx Xxxxxxx XX 00000 Los Angeles
50 Xxx Xxxxxxx XX 00000 Bexar
51 Xxxxxxx XX 00000 Xxxxxx
52 Baltimore MD 00000 Xxxxxxxxx
00 Xxxxx XX 00000 Tulsa
54 Xxxxxxx XX 00000 Xxxxxx
55 Various TX Various Various
55.01 Xxxxxx XX 00000 Denton
55.02 Xxxxxxx XX 00000 Lubbock
55.03 Xxx Xxxxxx XX 00000 Xxx Xxxxx
55.04 Xxx Xxxxxx XX 00000 Xxx Xxxxx
00 Xxxxxxx XX 00000 Xxxxxx
57 Xxxxxxxxxx XX 00000 District of Columbia
58 Providence RI 02908 Providence
59 Xxxxxx XX 00000 Fairfax
60 Xxx Xxxx XX 00000 Xxx Xxxx
00 Xxxxxx XX 00000 Albany
62 Xxxxxxx XX 00000 Xxxxxx
63 Xxxxxxxxx XX 00000 Xxxx Arundel
64 Xxxxxxxxxx XX 00000 Xxxxxx
00 Xxxxx Xxxxxx XX 00000 Linn
66 Various FL Various Brevard
66.01 Xxxxx XX 00000 Brevard
66.02 Xxxxxxxxx XX 00000 Brevard
66.03 Xxxxxxxxx XX 00000 Brevard
67 San Antonio TX Various Bexar
67.01 Xxx Xxxxxxx XX 00000 Bexar
67.02 Xxx Xxxxxxx XX 00000 Bexar
67.03 Xxx Xxxxxxx XX 00000 Bexar
67.04 Xxx Xxxxxxx XX 00000 Bexar
68 Xxxxxxxx XX 00000 Multnomah
69 Xxxxxxxxx XX 00000 Middlesex
70 Xxxxxxxxxx XX 00000 Jefferson
70.01 Xxxxxxxxxx XX 00000 Jefferson
70.02 Xxxxxxxxxx XX 00000 Jefferson
70.03 Xxxxxxxxxx XX 00000 Jefferson
71 Xxxxxxxxxxxx XX 00000 Bucks
72 Lowell AR 00000 Xxxxxx
00 Xxxxxxxxxx XX 00000 Xxxxxxxx
74 Xxxxxxxx XX 00000 Potter
75 Xxx Xxxxxxx XX 00000 Los Angeles
76 Xxxxx Xxxxxx XX 00000 San Bernardino
77 Philadelphia PA Various Philadelphia
77.01 Xxxxxxxxxxxx XX 00000 Philadelphia
77.02 Xxxxxxxxxxxx XX 00000 Philadelphia
77.03 Xxxxxxxxxxxx XX 00000 Philadelphia
78 Xxxxxxx Xxxxx XX 00000 Wood
79 Xxxxx XX 00000 Pinellas
80 Xxxxxx XX 00000 Los Angeles
81 Xxxxxxx XX 00000 Contra Costa
82 Xxxxxxxx XX 00000 Xxxxxxxxxx
83 Ferguson MO 00000 Xx. Xxxxx
00 Xxxxxx Xxxx XX 00000 Xxxxxxx
85 Big Rapids MI 49307 Mecosta
85.01 Big Xxxxxx XX 00000 Mecosta
85.02 Big Xxxxxx XX 00000 Mecosta
00 Xxxxxxxx Xxxx XX 00000 Xxxxxxx
87 Xxxxxxxxxx XX 00000 Xxxxxxxxxx
88 Xxxxxx Xxxxx XX 00000 Lake
89 Xxxxxxxx XX 00000 Xxxxx
90 Buffalo Grove IL 00000 Xxxx
00 Xxxxxxxx XX 00000 Xxxxx
92 Xxxxxx Xxxx XX 00000 Xxxxxxx
93 Xxxxxxxxxxxx XX 00000 Philadelphia
94 Xxxxxxxx XX 00000 Xxxxxx
95 Xx Xxxxx XX 00000 Orange
96 Greenwood IN 00000 Xxxxxxx
00 Xxxxxxx Xxxx XX 00000 Xxxxxx
98 Xxxxxxxxxxx XX 00000 Philadelphia
98.01 Xxxxxxxxxxx XX 00000 Philadelphia
98.02 Xxxxxxxxxxxx XX 00000 Philadelphia
98.03 Xxxxxxxxxxxx XX 00000 Philidelphia
00 Xxxx Xxxxxxxxxx XX 00000 Montgomery
100 Xxxxxx XX 00000 Arapahoe
000 Xxxx Xxxxxxxxxx XX 00000 Oakland
000 Xxx Xxxxx XX 00000 Xxxxx
000 Xxxxxx XX 00000 Xxxxxx
000 Xxxxxxxxxx XX 00000 District of Columbia
000 Xxxxxxxx XX 00000 Cumberland
000 Xxxxx Xxxxxx XX 00000 Xxx Xxxxxxx
107 Xxxxxx XX 00000 Peoria
000 Xxxxxx XX 00000 Natrona
000 Xxx Xxxxxx XX 00000 Xxx Xxxxx
000 Xxxxxx XX 00000 Xxxxxx
111 Xxxxxx XX 00000 King
112 Xxxxxxxxxxx XX 00000 Xxxxx
113 Xxxxxxxxx XX 00000 Campbell
114 Lawton OK 00000 Xxxxxxxx
000 Xxxxx XX 00000 Butte
116 Xxxxxxxx XX 00000 Waukesha
116.01 Xxxxxxxx XX 00000 Waukesha
116.02 Xxxxxxxx XX 00000 Waukesha
117 Xxxxxxx XX 00000 Xxxxxx
118 Xxx Xxxx XX 00000 New York
119 Xxxxxxxxx XX 00000 Jefferson
000 Xxx Xxxxxx XX 00000 Polk
000 Xxxxx Xxxx XX 00000 Orange
122 Xxxxxxxxxx XX 00000 Maricopa
123 Xxxxxxx XX 00000 Xxxxxx
124 Xxxxxxxxx XX 00000 Union
125 Xxxxxxxxxx XX 00000 Maricopa
000 Xxxxxxxx XX 00000 Xxxxxxx
000 Xxxx XX 00000 York
128 Xxxxxxxxx XX 00000 Orange
129 Xxxxxxx XX 00000 Xxxx
000 Xxxxxxx Xxxx XX 00000 Xxxxxxx
131 Dallas TX 75252 Collin
132 Xxxxxxx XX 00000 Xxxx
000 Xxx Xxxxx XX 00000 Xxxxx
134 Xxxx XX 00000 Washoe
135 Xxxxxxxx XX 00000 Sarasota
000 Xxxx Xxxxxx XX 00000 Walworth
137 Xxxxxx XX 00000 Dallas
000 Xxxxxx Xxxxxx XX 00000 Montgomery
139 Xxxxxx Xxxx XX 00000 Xxxxxxx
140 Xxx Xxxxxxx XX 00000 Los Angeles
000 Xxxxxxxx Xxxx XX 00000 Xxxxxxx
000 Xxxxxx Xxxxxxx XX 00000 Nueces
143 Xxxx XX 00000 Wake
144 Xxxxxxx XX 00000 Xxxx
145 Xxxxxxxxx XX 00000 Kalamazoo
000 Xxxx Xxxxx XX 00000 Tarrant
147 Xxxxxxxxxx XX 00000 Xxx Xxxxxx
000 Xxxxxxx Xxxxxxx XX 00000 Prince George's
000 Xxxx Xxxxxxx XX 00000 Xxxxxx
150 Bellaire TX 00000 Xxxxxx
000 Xxxxxx Xxxx XX 00000 Xxxxxxx
000 Xxxxxxx XX 00000 Clay
000 Xxxx Xxxxxxxxx XX 00000 Xxxx
154 Xxxxxx XX 00000 McLean
000 Xxxxxxxx Xxxxxxx XX 00000 Cuyahoga
000 Xxxxxx XX 00000 Xxxxxx
157 Hobart IN 00000 Xxxx
000 Xxxxxxxxxx XX 00000 Xxxxxx
000 Xxxx Xxxxx XX 00000 Allen
160 Xxxxx XX 00000 Maricopa
000 Xxxxxx XX 00000 Xxxxxx
000 Xxxxxxxxxx XX 00000 Montgomery
163 Xxx Xxxxxxx XX 00000 Xxx Xxxxxxx
000 Xxxxxxxxxx XX 00000 Broward
000 Xxxxxxx XX 00000 Shelby
000 Xxx Xxxxx XX 00000 Xxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxxx XX 00000 Clay
168 Katy TX 00000 Xxxxxx
000 Xxxxxxx XX 00000 Xxxx
170 Xxxxxx Xxxx XX 00000 Wyandotte
000 Xxxxxxx Xxxx XX 00000 Xxx Xxxxxxx
172 Rapid City SD 00000 Xxxxxxxxxx
000 Xxxxxxxx XX 00000 Montgomery
174 Xxxxxxxxxx XX 00000 Xxxxxxxx
175 Xxxxxxxx XX 00000 Xxxxxx
176 Xxxxxxxxxx XX 00000 Dauphin
000 Xxxxx Xxxxxx XX 00000 St. Xxxxxx
178 Xxxxxxx XX 00000 San Bernadino
000 Xxxxxxxxx Xxxxxxx XX 00000 Seminole
180 Xxxxxxxxxx XX 00000 Jefferson
181 Xxxxxxxx XX 00000 Vermilion
182 Xxx Xxxxxxx XX 00000 Los Angeles
183 Xxxxxx XX 00000 Montgomery
184 Xxxxxxx XX 00000 Xxxxxx
000 Xxxxxxxxxx XX 00000 Coffee
186 Xxxxxxxxxxxx XX 00000 Xxxxxx
187 Xxxxxxxxxx XX 00000 Allegheny
188 Martinsburg WV 00000 Xxxxxxxx
000 Xxxxxxx XX 00000 Xxxxxx
000 Xxxxxxx Xxxxx XX 00000 Wood
191 Xxxxxxxxxxxxxx XX 00000 Xxxxxxxxxx
192 Xxx Xxxxxxx XX 00000 Riverside
193 Clarksville IN 00000 Xxxxx
000 Xxxxxxxxxx XX 00000 Los Angeles
195 Alexandria IN 00000 Xxxxxxx
XXXXXX Xxxxxxx XX 00000 Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
Loan # Property Name Size Measure Interest Rate (%)
------------------------------------------------------------------------------------------------------------------------------------
1 Brookdale Office Portfolio 3,106,566 Square Feet 4.98000
1.01 Concourse Lakeside I 76,769 Square Feet 4.98000
1.02 Concourse Lakeside II 77,320 Square Feet 4.98000
1.03 Corporate Center One at International Plaza 390,698 Square Feet 4.98000
1.04 Corporate Center Three at International Plaza 289,625 Square Feet 4.98000
1.05 Corporate Center Two at International Plaza 290,484 Square Feet 4.98000
1.06 Deerfield Corporate Centre One 133,266 Square Feet 4.98000
1.07 Deerfield Corporate Centre Two 132,622 Square Feet 4.98000
1.08 Hidden River Corporate Center I 135,174 Square Feet 4.98000
1.09 Hidden River Corporate Center II 137,433 Square Feet 4.98000
1.10 Hidden River Corporate Center III 148,309 Square Feet 4.98000
1.11 One Resource Square 90,558 Square Feet 4.98000
1.12 Paragon Place at Hurstbourne 82,152 Square Feet 4.98000
1.13 Satellite Place 300 131,337 Square Feet 4.98000
1.14 Satellite Place 400 131,884 Square Feet 4.98000
1.15 Satellite Place 600 149,958 Square Feet 4.98000
1.16 Satellite Place 800 132,892 Square Feet 4.98000
1.17 Stony Point II Office Building 48,707 Square Feet 4.98000
1.18 The Reserve at Greens Crossing II 157,897 Square Feet 4.98000
1.19 Three Resource Square 153,043 Square Feet 4.98000
1.20 Timberway One 92,780 Square Feet 4.98000
1.21 Two Resource Square 123,658 Square Feet 4.98000
2 Houston Galleria 1,894,045 Square Feet 5.34405
3 Xxxxx Office Portfolio 1,507,220 Square Feet 5.76700
3.01 Fourth & Vine Building 123,324 Square Feet 5.76700
3.02 0000 Xxxxxxx Xxxxxx 184,610 Square Feet 5.76700
3.03 000 Xxxxx Xxxx Xxxxxx 84,077 Square Feet 5.76700
3.04 0000 Xxxxxx Xxxxxx 434,688 Square Feet 5.76700
3.05 0000 Xxxxxxx Xxxxxx 190,237 Square Feet 5.76700
3.06 Third & Broad 269,837 Square Feet 5.76700
3.07 Xxxxxxx Xxx Xxxxxx Xxxx 000,000 Xxxxxx Feet 5.76700
4 2 Grand Central Tower 636,242 Square Feet 5.03000
5 Jordan Creek 939,085 Square Feet 4.56500
6 Grand Plaza 481 Units 5.50700
7 DRA - CRT Portfolio II 1,401,560 Square Feet 5.34600
7.01 Memphis - Stuart 85,051 Square Feet 5.34600
7.02 Memphis - Xxxxxxxxx 106,847 Square Feet 5.34600
7.03 Memphis - Grove 52,024 Square Feet 5.34600
7.04 Memphis - Gainsborough 91,580 Square Feet 5.34600
7.05 Memphis - Oak Ridge 114,801 Square Feet 5.34600
7.06 Memphis - Parkway 94,007 Square Feet 5.34600
7.07 Orlando Central - Xxxxxxx 37,636 Square Feet 5.34600
7.08 Orlando Central - Xxxxxxxx 23,124 Square Feet 5.34600
7.09 Orlando Central - Xxxxxxxxx 23,012 Square Feet 5.34600
7.10 Orlando Central - Yorktown 31,968 Square Feet 5.34600
7.11 Orlando Central - Hollister 31,346 Square Feet 5.34600
7.12 Orlando Central - Commodore 30,902 Square Feet 5.34600
7.13 Orlando Central - Lexington 52,704 Square Feet 5.34600
7.14 Orlando Central - Bainbridge 9,172 Square Feet 5.34600
7.15 Orlando Central - Xxxxxxxxxxx 55,867 Square Feet 5.34600
7.16 Orlando Central - Bennington 28,789 Square Feet 5.34600
7.17 Orlando Central - Amherst 22,948 Square Feet 5.34600
7.18 Orlando Central - Princeton 8,807 Square Feet 5.34600
7.19 Orlando Central - Enterprise 26,384 Square Feet 5.34600
7.20 Orlando Central - Palmetto 23,217 Square Feet 5.34600
7.21 Orlando Central - Essex 27,149 Square Feet 5.34600
7.22 Orlando Central - Xxxxxx 24,933 Square Feet 5.34600
7.23 Orlando Central - St. Xxxx 36,113 Square Feet 5.34600
7.24 Orlando Central - Saratoga 40,477 Square Feet 5.34600
7.25 Orlando Central - Rockbridge 17,984 Square Feet 5.34600
7.26 Jacksonville JTB - Xxxxxxx 107,956 Square Feet 5.34600
7.27 Orlando Central - Xxxx 24,208 Square Feet 5.34600
7.28 Jacksonville JTB - Carlton 103,515 Square Feet 5.34600
7.29 Orlando Central - Independence 39,737 Square Feet 5.34600
7.30 Jacksonville JTB - Deerwood Park 29,302 Square Feet 5.34600
Bluebird Portfolio 1,720 Units 5.48900
8 Rolling Winds Apts. 280 Units 5.48900
0 Xxxxxxxx Xxxxxxx 000 Xxxxx 5.48900
10 Crosswinds III 280 Units 5.48900
11 Glens @ XX 000 Xxxxx 0.00000
12 Crosswinds II 203 Units 5.48900
13 Crosswinds I 203 Units 5.48900
14 Crosswinds IV 122 Units 5.48900
00 Xxxxxxx Xxxxx 00 Xxxxx 0.00000
Xxxxxx Xxxxxxxxx 1,487,342 Various 5.60900
16 Prologis - Platte Valley Portfolio 824,055 Square Feet 5.60900
00 Xxxxxxxxx Xx Main 325 Xxxxx 0.00000
00 0000 Xxxxx XxXxxxxx 140,448 Square Feet 5.60900
19 Lodges at Frisco 262 Units 5.60900
00 Xxxx Xxxxxx Xxxxxxxx XXX 000,000 Xxxxxx Feet 5.60900
21 Mandalay at Shadow Lake 296 Units 5.60900
22 Prologis - Riverside Portfolio 324,676 Square Feet 5.60900
23 Prologis - Congleton Distribution 90,163 Square Feet 5.60900
24 NEC America Corporate Center 526,245 Square Feet 5.57000
25 Atlantic Development Portfolio 902,237 Square Feet 5.85000
25.01 0 Xxxxxx Xxxx Xxxxx 000,000 Xxxxxx Feet 5.85000
25.02 00 Xxxxxxxxxx Xxxxx 000,000 Xxxxxx Feet 5.85000
25.03 00 Xxxxxxxxxx Xxxxx 93,336 Square Feet 5.85000
25.04 00 Xxxxxxxxxx Xxxxx 45,392 Square Feet 5.85000
25.05 00 Xxxxxxxx Xxxx 89,024 Square Feet 5.85000
25.06 000 Xxxxxxxx Xxxx 149,259 Square Feet 5.85000
25.07 00 Xxxxxxxxxx Xxxxx 000,000 Xxxxxx Feet 5.85000
25.08 Xxx Xxxxxxxxx Xxxxx 000,000 Xxxxxx Feet 5.85000
00 Xxxxxxx Xxxx 000,000 Xxxxxx Feet 5.63570
27 Chartwell Portfolio 544 Units 5.41300
27.01 Arvada Meridian 125 Units 5.41300
27.02 Westland Meridian 153 Units 5.41300
27.03 Englewood Meridian 266 Units 5.41300
28 00 Xxxxxxxx 000,000 Xxxxxx Feet 5.76450
29 32 & 00 Xxxxxxxx 000,000 Xxxxxx Feet 5.50600
30 Venture Center 474,316 Square Feet 5.18200
31 Centurion Industrial Portfolio 1,901,637 Square Feet 5.26000
31.01 Airport Center One 141,613 Square Feet 5.26000
31.02 Airport Center Two 71,665 Square Feet 5.26000
31.03 Highwoods Distribution 168,324 Square Feet 5.26000
31.04 Xxxxxxxxxx Xxxxxxxx Xxxx - 000 Xxxxxxxxxx Xxxx Xxxxx 201,000 Square Feet 5.26000
31.05 Xxxxxxxxxx Xxxxxxxx Xxxx - 000 Xxxxxxxxxx Xxxx Xxxxx 220,500 Square Feet 5.26000
31.06 Xxxxxxxxxx Xxxxxxxx Xxxx - 000 Xxxxxxxxxx Xxxx Xxxxx 57,000 Square Feet 5.26000
31.07 Xxxxxxxxxx Xxxxxxxx Xxxx - 000 Xxxxxxxxxx Xxxx Xxxxx 261,000 Square Feet 5.26000
31.08 Xxxxxxxxxx Xxxxxxxx Xxxx - 000 Xxxxxxxxxxx Xxxxx 446,818 Square Feet 5.26000
31.09 Xxxxxxxxxx Xxxxxxxx Xxxx - 000 Xxxxxxxxxxx Xxxxx 21,176 Square Feet 5.26000
31.10 Westpoint Business Park - 0000 Xxxxxxxxx Xxxxxxxxx 26,282 Square Feet 5.26000
31.11 Westpoint Business Park - 0000 Xxxxxxxxx Xxxxxxxxx 18,059 Square Feet 5.26000
31.12 Westpoint Business Park - 0000 Xxxxxxxxx Xxxxxxxxx 89,000 Square Feet 5.26000
31.13 Westpoint Business Park - 0000 Xxxxxxxxx Xxxxxxxxx 89,600 Square Feet 5.26000
31.14 Westpoint Business Park - 0000 Xxxxxx Xxxxx 89,600 Square Feet 5.26000
32 Four Seasons Miami- Commercial 254,648 Square Feet 5.24813
33 Mellon Trust Center 384,000 Square Feet 5.34000
34 Eckerd Portfolio 265,236 Square Feet 4.91000
34.01 Eckerd Store #5028 10,908 Square Feet 4.91000
34.02 Eckerd Store #5029 10,908 Square Feet 4.91000
34.03 Eckerd Store #5031 10,908 Square Feet 4.91000
34.04 Eckerd Store #5059 12,738 Square Feet 4.91000
34.05 Eckerd Store #5060 12,738 Square Feet 4.91000
34.06 Eckerd Store #5630 13,824 Square Feet 4.91000
34.07 Eckerd Store #5633 10,908 Square Feet 4.91000
34.08 Eckerd Store #5634 13,813 Square Feet 4.91000
34.09 Eckerd Store #5635 10,908 Square Feet 4.91000
34.10 Eckerd Store #5654 13,813 Square Feet 4.91000
34.11 Eckerd Store #5664 12,738 Square Feet 4.91000
34.12 Eckerd Store #5776 10,908 Square Feet 4.91000
34.13 Eckerd Store #5794 10,908 Square Feet 4.91000
34.14 Eckerd Store #5799 10,908 Square Feet 4.91000
34.15 Eckerd Store #5821 10,908 Square Feet 4.91000
34.16 Eckerd Store #5822 13,824 Square Feet 4.91000
34.17 Eckerd Store #5831 13,198 Square Feet 4.91000
34.18 Eckerd Store #5840 12,738 Square Feet 4.91000
34.19 Eckerd Store #5911 10,908 Square Feet 4.91000
34.20 Eckerd Store #5940 10,908 Square Feet 4.91000
34.21 Eckerd Store #5945 13,824 Square Feet 4.91000
34.22 Eckerd Store #5962 12,000 Square Feet 4.91000
00 Xxxxxxx Xxxxx 000,000 Xxxxxx Feet 4.94000
36 000 Xxxxxxxx (NY) 122,200 Square Feet 5.12000
37 Intech One & Two 281,697 Square Feet 5.32000
38 Hospitality Ventures Portfolio 655 Units 5.49700
38.01 Doubletree Mahwah 139 Units 5.49700
38.02 Courtyard Mount Arlington 125 Units 5.49700
38.03 Doubletree Guest Suites 138 Units 5.49700
38.04 Fairfield Inn Portland Maine Mall 120 Units 5.49700
38.05 Fairfield Inn by Marriott 133 Units 5.49700
39 30 West Monroe 228,459 Square Feet 5.37000
40 Market at Polaris 208,544 Square Feet 4.79000
41 Raleigh Office Centre 289,279 Square Feet 5.71000
Fath Portfolio I 1,492 Xxxxx 0.00000
00 Xxxxx Xxxxxxx 922 Units 5.23000
43 Xxxx Xxxxx 216 Units 5.23000
44 Preston 144 Units 5.23000
45 Slopes of Aspen 96 Units 5.23000
46 Wyoming 114 Units 5.23000
47 LXP-Experian - TRW 292,700 Square Feet 5.12600
48 Farmington Hills Corporate Center 177,503 Square Feet 5.10000
00 Xxxxxxx Xxxxx Xxxxxx 000,000 Xxxxxx Feet 5.57000
50 The San Xxxxxx Apartments 330 Units 5.35000
51 Signature Palms Apartment Homes 396 Units 5.39000
52 Granite Run Apts. 264 Xxxxx 0.00000
00 Xxxxxxxxx Xxxxxxxxxx - Xxxxx 651 Units 5.47000
54 Villas @ Coronado Apts - Houston 344 Units 5.51000
55 KPartners Hotel Portfolio 320 Rooms 6.40000
55.01 Xxxxxxx Xxx & Xxxxxx-Xxxxxx 00 Rooms 6.40000
55.02 Hawthorn Suites- Lubbock 82 Rooms 6.40000
55.03 Hawthorn Suites- San Xxxxxx 80 Rooms 6.40000
55.04 Xxxxxxxxx Xxx & Xxxxxx 00 Xxxxx 0.00000
56 The Veranda at Centerfield 400 Units 5.69000
57 Penn Branch Shopping Center 88,985 Square Feet 5.91500
00 Xxxxx Xxxxxxxx 000,000 Xxxxxx Feet 5.23000
59 0000 Xxxxxxxx Xxxxxx Xxxxx 98,568 Square Feet 5.19000
60 000 Xxxx Xxxxxx Xxxxx 83,750 Square Feet 5.51500
61 Xxxxx Station Apts 282 Units 5.19000
62 The Vanderbilt Apartments 416 Units 5.34000
63 Baywoods of Annapolis 147 Units 5.76000
64 Sonterra at Buckingham 312 Units 5.30000
00 Xxxxxxxx Xxxxx 000,000 Xxxxxx Feet 5.57000
66 ERH Portfolio 234,178 Square Feet 5.41000
66.01 Port St. Xxxx 79,889 Square Feet 5.41000
66.02 Rockledge 76,018 Square Feet 5.41000
66.03 Xxxxxxxx Square 78,271 Square Feet 5.41000
67 AOH - SA Portfolio I 508 Units 5.63000
67.01 Berrendo Square 100 Units 5.63000
67.02 Canlen West Apartments 132 Units 5.63000
67.03 Xxxxxx Ranch Apartments 164 Units 5.63000
67.04 Laurel Crossing Apartments 112 Units 5.63000
68 Xxxxx Mountain by the Xxxxxx Apartments 262 Units 5.08000
69 000 Xxxxxx Xxxxxx 94,500 Square Feet 5.55000
70 Aslan Birmingham Portfolio 465 Units 5.40000
70.01 Xxxxx Xxxxxxxxxxx Xxxxxxxxxx 000 Xxxxx 5.40000
70.02 Aslan Chalkville Apartments 77 Units 5.40000
70.03 Xxxxx Xxxxxxxx Apartments 120 Units 5.40000
71 Feasterville 120,885 Square Feet 5.31000
00 Xxxxxx Xxxxxxxx Xxxx 000,000 Xxxxxx Feet 5.60000
73 Walmart (Cincinnati) 149,429 Square Feet 5.16000
74 Winchester Apartments 256 Units 4.98000
75 Natick Place 122 Units 5.10000
76 HTA-Los Ranchos 389 Pads 5.40470
77 IRS Portfolio 242,543 Units 5.81000
77.01 00000 Xxxxxxxx Xxxx 70,814 Square Feet 5.81000
77.02 0000 Xxxxxxxxx Xxxx 79,901 Square Feet 5.81000
77.03 0000 Xxx Xxxx Xxxx 91,828 Square Feet 5.81000
78 Copper Beech - Bowling Green 128 Units 5.63000
79 HTA-Whispering Pines 392 Pads 5.40470
00 Xxxxxx Xxxxx 000,000 Xxxxxx Feet 5.62000
81 Concord Park and Shop 99,148 Square Feet 5.25500
82 Kohl's (Brighton) 103,295 Square Feet 5.17000
83 Crossings at Halls Ferry 136,242 Square Feet 5.12143
84 Residence Inn Country Club Xxxxx 000 # xx Xxxxx 0.00000
00 Xxxxxx Xxxxx University Multifamily Properties 476 Various 5.62000
85.01 Oakwood Townhouses 336 Beds 5.62000
85.02 Hillcrest Village Apartments 140 Units 5.62000
86 Autumn Park 232 Units 5.14000
87 Xxxxxx Opera House 69,261 Square Feet 5.65600
88 Home Depot (Xxxxxx Hills) 111,400 Square Feet 5.58000
89 Alstom SA & Xxxxxx Holding Co. Industrial 690,000 Square Feet 5.18000
90 Precise Technology, Inc. - Buffalo Grove, IL 264,695 Square Feet 5.71000
00 Xxxx Xxxx Xxxxx 71,900 Square Feet 5.52000
00 Xxxxxxxxx Xxxx Xxxxxxxxxx Center 173,090 Square Feet 5.35000
00 Xxxxxxxx Xxxxxxx 46,505 Square Feet 5.57000
00 Xxxx Xxxxxx Xxxxx 000,000 Xxxxxx Feet 5.27000
95 Lakeside Shopping Center 66,821 Square Feet 5.02000
96 Xxxxxx Xxxxx 91,416 Square Feet 5.72000
97 Sterling Hills Apts 216 Units 6.00000
98 Philadelphia Airport Bus Center 91,879 Square Feet 5.29000
98.01 0000 Xxxxxx Xxxxxx 30,022 Square Feet 5.29000
98.02 0000 Xxxxxxx Xxx. 30,000 Square Feet 5.29000
98.03 Phila. Airport Bus Center 31,857 Square Feet 5.29000
99 Pottsgrove Townhomes 116 Units 5.71000
000 Xxxxx & Xxxxx Xxxxx 000,000 Xxxxxx Feet 5.45000
000 Xxxxxx & Noble 42,625 Square Feet 5.23000
000 Xxxxxx Xxxxxxxx 00,000 Xxxxxx Xxxx 0.00000
000 XXX-Xxxxx Xxxxx Xxxxxxx 274 Pads 5.40470
104 0000 XxxXxxxxx Xxxxxxxxx 42,737 Square Feet 5.61000
000 Xxxxxxxx Xxxxxxx 166 Xxxxx 0.00000
000 Xx Xxxxxxx Ground Lease 65,234 Square Feet 4.97050
000 Xxxxxxx Xxxxx Apartments 204 Units 5.40000
108 Foxhill Apartments 304 Units 5.72000
109 Xxxxxxxxx 95,915 Square Feet 5.44000
110 Shops at Riverplace 30,286 Square Feet 5.62000
000 Xxxxx Xxxx Xxxxxx 000,000 Xxxxxx Feet 5.35000
000 Xxxxxxxx Xxxxxx Xxxxxxxx 00,000 Xxxxxx Feet 5.56000
000 Xxxxxxxxx Xxxxx 98,694 Square Feet 5.82500
000 Xxxxxx Xxxxx Xxxxxxxxxx 000 Xxxxx 5.30000
115 Casa xx Xxxxxx 309 Pads 5.23000
116 Wisconsin Apartment Portfolio 144 Units 5.45000
116.01 Westwood Apartments 72 Units 5.45000
116.02 Pebble Place Apartments 72 Units 5.45000
117 Kroger Center Cypresswood 34,730 Square Feet 5.64000
118 000 Xxxxxx Xxxxxx 11,830 Square Feet 5.16500
119 Jefferson Corporate Center 69,135 Square Feet 5.80500
000 Xxxxxxxx Xxxxxxx 96,265 Square Feet 5.37000
000 Xxxxx Xxxx Xxxxxx Xxxxxxx 113 Pads 5.27000
122 XxXxxxxxx Ranch Center 74,784 Square Feet 5.73000
000 Xxxxx Xxxxxxx Xxxxxxxxxx 000 Xxxxx 5.20000
124 00 Xxxxxxxx Xxxxx 48,104 Square Feet 5.53000
125 CVS - Scottsdale, AZ 13,813 Square Feet 5.77000
000 Xxxxxxxx Xxxxx 74,086 Square Feet 5.34000
127 York Value Center 115,012 Square Feet 5.63000
128 Sunnycrest Chalet 130 Units 5.20000
129 000 Xxxx Xxxxxxxx Xxxx Xxxxxxxxxx 000 Units 5.15000
000 Xxxxxxx Xxxx Shopping Center I 85,282 Square Feet 5.35000
000 Xxx Xxxxxxxxx Xxxx 92,513 Square Feet 5.76000
132 Arro Corp 203,932 Square Feet 5.45000
133 Aabacus Industrial Center 56,452 Square Feet 5.61000
134 Best Western 270 # of Rooms 5.92000
000 Xxxxx Xxxxxx Xxxxx 36,709 Square Feet 5.98000
136 The Summit at The Ridges of Geneva East 96 Units 5.21000
000 Xxx Xxxxx Xxxxxxxx 60,260 Square Feet 5.27000
000 Xxxxx Xxxxxx Xxxxxxxx Xxxxxx 27,121 Square Feet 5.36130
000 Xxxxx Xxxxxxxx Xxxxxx 274,444 Square Feet 5.49000
000 Xxxxxx Xxxx Xxxx 33 Units 5.10000
000 Xxxxxx Xxxxxx 102 Units 5.18000
000 Xxxxx Xxxx Xxxxxxxxxx 000 Xxxxx 7.00000
000 Xxxxxxxx Xxxxx 49,281 Square Feet 5.44800
000 Xxxxxx Xxxxxxxx 00,000 Xxxxxx Feet 5.31000
000 Xxxxxx Xxxxx 000 Xxxxx 5.42000
146 North Beach Shopping Center 20,340 Square Feet 5.85000
000 Xxxxxxxxxx Xxxxxxx Xxxxxx 30,000 Square Feet 5.33000
000 Xxxxxx Xxxxx Xxxxxx Shopping Center 39,340 Square Feet 5.48000
149 Tylersville Corner 27,164 Square Feet 5.67000
150 4545 Bissonnet 63,937 Square Feet 5.35000
000 Xxxxxxx Xxxx Xxxxxxxx Xxxxxx 105,825 Square Feet 5.39000
152 Gateway I - Kansas City 23,030 Square Feet 5.82000
000 Xxxx Xxxxxxxxx Xxxxxxxx Xxxxxx 51,982 Square Feet 5.40000
000 Xxxxxxx Xxxx Xxxx Homes 108 Beds 5.45000
155 000 Xxxxxxx Xxxxxx 59,801 Square Feet 5.67000
156 French Xxxxxxx Xxxxxxxxxx 000 Xxxxx 0.00000
000 Xxxxxxxxx - Xxxxxx 15,120 Square Feet 4.61000
158 Tall Timber Apartments 108 Units 5.14000
000 Xxxxxxxx Xxxxxx Apartments 136 Units 5.12000
160 XxXxxxxxxx Medical Dental Building 22,845 Square Feet 5.63000
000 Xxxx xx Xxxxxxx Xxxxxxxx - Xxxxxxx 45,895 Square Feet 5.72000
000 Xxxxxxx Xxxx II 112 Units 6.50000
163 Natick Park North 19 Units 5.10000
164 Stor It All Self Storage 579 Units 5.74000
000 Xxxxxxx Xxxxx Xxxxxxxxxx 000 Xxxxx 5.85000
166 Oasis Business Park - Vegas 22,080 Square Feet 5.41000
000 Xxxxx Xxxx Xxxxx Xxxxxx 73,904 Square Feet 5.63000
168 Plaza on the Park 24,326 Square Feet 5.57000
169 000 Xxxx Xxxxxx Xxxxxx Apartments 75 Units 5.15000
170 Bryant Manor Apartments 100 Units 5.16000
000 Xxxxxx Xxxx Xxxx 22 Units 5.10000
000 Xxxxx Xxxxxx Xxxxxxxxxx 00 Units 5.16000
173 The Market at 1488 - Cencor Portfolio 18,173 Square Feet 5.51000
174 Valley Creek Apartments 71 Units 5.14000
175 Coach Country Corrall MHC 81 Pads 5.20000
176 Rite Aid (Middletown) 11,180 Square Feet 5.85000
000 Xxxxxxx Xxxxxx Xxxxx 73,341 Square Feet 5.69310
000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx 74 Pads 5.32000
179 Golfsmith 14,920 Square Feet 4.64000
180 XX Xxxxx Appliances 60,575 Square Feet 5.52000
181 Tractor Supply - Danville 24,727 Square Feet 5.90000
000 Xxxxxxx Xxxxx Xxxx 18 Units 5.10000
183 Xxxxxxxx Shopping Center 22,401 Square Feet 5.67000
184 10830 Train Court 33,600 Square Feet 5.82000
185 Eckerd Pharmacy Manchester 10,908 Square Feet 5.63000
000 Xxxxxxxxx Xxxx Shops 20,540 Square Feet 5.67000
187 Xxxx Loft Apartments 14 Units 5.53000
188 Advance Auto Parts 7,000 Square Feet 5.22000
189 Plazas at Legacy Park 12,675 Square Feet 5.89500
190 Ivywood Apartments 67 Units 5.38000
191 Staples 24,049 Square Feet 5.15000
192 Mountain View Manufactured Housing Community 71 Pads 5.71000
000 Xxxxxxxxxxx Xxxxx 8,000 Square Feet 5.67000
194 Montebello MHC 47 Pads 5.71000
000 XxXxxxx Xxxxxxx 10,000 Square Feet 5.67000
HGTSCL Houston Galleria 1,894,045 Square Feet 5.65730
------------------------------------------------------------------------------------------------------------------------------------
Net Mortgage Rem. Maturity/ARD Amort. Rem.
Loan # Interest Rate Original Balance Cutoff Balance Term Term Date Term Amort.
------------------------------------------------------------------------------------------------------------------------------------
1 4.95970 335,000,000 335,000,000 120 117 09/11/15 360 360
1.01 6,136,052 6,136,052 120 117 360 360
1.02 5,883,020 5,883,020 120 117 360 360
1.03 50,986,168 50,986,168 120 117 360 360
1.04 46,494,830 46,494,830 120 117 360 360
1.05 40,358,778 40,358,778 120 117 360 360
1.06 13,600,529 13,600,529 120 117 360 360
1.07 15,181,986 15,181,986 120 117 360 360
1.08 12,904,688 12,904,688 120 117 360 360
1.09 13,410,754 13,410,754 120 117 360 360
1.10 13,916,820 13,916,820 120 117 360 360
1.11 10,437,615 10,437,615 120 117 360 360
1.12 5,060,662 5,060,662 120 117 360 360
1.13 12,525,138 12,525,138 120 117 360 360
1.14 12,967,946 12,967,946 120 117 360 360
1.15 15,656,422 15,656,422 120 117 360 360
1.16 8,555,682 8,555,682 120 117 360 360
1.17 3,352,689 3,352,689 120 117 360 360
1.18 11,829,297 11,829,297 120 117 360 360
1.19 15,498,277 15,498,277 120 117 360 360
1.20 5,693,244 5,693,244 120 117 360 360
1.21 14,549,403 14,549,403 120 117 360 360
2 5.32375 290,000,000 290,000,000 120 120 12/01/15 0 0
3 5.73670 242,000,000 242,000,000 120 120 01/01/16 0 0
3.01 18,055,000 18,055,000 120 120 0 0
3.02 25,194,000 25,194,000 120 120 0 0
3.03 13,647,000 13,647,000 120 120 0 0
3.04 83,279,000 83,279,000 120 120 0 0
3.05 29,043,000 29,043,000 120 120 0 0
3.06 44,089,000 44,089,000 120 120 0 0
3.07 28,693,000 28,693,000 120 120 0 0
4 5.00970 190,000,000 190,000,000 60 55 07/11/10 0 0
5 4.54470 177,500,000 174,783,146 51 39 03/01/09 360 348
6 5.48670 160,000,000 160,000,000 120 109 01/10/15 360 360
7 5.32570 138,100,000 138,100,000 60 58 10/01/10 0 0
7.01 8,062,200 8,062,200 60 58 0 0
7.02 12,725,600 12,725,600 60 58 0 0
7.03 4,426,300 4,426,300 60 58 0 0
7.04 8,417,900 8,417,900 60 58 0 0
7.05 10,552,000 10,552,000 60 58 0 0
7.06 6,916,000 6,916,000 60 58 0 0
7.07 3,526,000 3,526,000 60 58 0 0
7.08 2,350,700 2,350,700 60 58 0 0
7.09 1,909,900 1,909,900 60 58 0 0
7.10 2,938,300 2,938,300 60 58 0 0
7.11 2,791,400 2,791,400 60 58 0 0
7.12 2,681,200 2,681,200 60 58 0 0
7.13 5,142,000 5,142,000 60 58 0 0
7.14 881,500 881,500 60 58 0 0
7.15 5,362,400 5,362,400 60 58 0 0
7.16 2,997,100 2,997,100 60 58 0 0
7.17 2,020,100 2,020,100 60 58 0 0
7.18 793,400 793,400 60 58 0 0
7.19 2,718,000 2,718,000 60 58 0 0
7.20 2,108,300 2,108,300 60 58 0 0
7.21 2,387,400 2,387,400 60 58 0 0
7.22 2,387,400 2,387,400 60 58 0 0
7.23 3,379,100 3,379,100 60 58 0 0
7.24 4,113,600 4,113,600 60 58 0 0
7.25 1,689,600 1,689,600 60 58 0 0
7.26 13,203,200 13,203,200 60 58 0 0
7.27 2,130,300 2,130,300 60 58 0 0
7.28 12,431,100 12,431,100 60 58 0 0
7.29 3,892,300 3,892,300 60 58 0 0
7.30 3,165,700 3,165,700 60 58 0 0
5.46870 130,000,000 130,000,000 84 82 10/11/12 0 0
8 5.46870 24,500,000 24,500,000 84 82 10/11/12 0 0
9 5.46870 21,300,000 21,300,000 84 82 10/11/12 0 0
10 5.46870 20,866,000 20,866,000 84 82 10/11/12 0 0
11 5.46870 17,920,000 17,920,000 84 82 10/11/12 0 0
12 5.46870 14,960,000 14,960,000 84 82 10/11/12 0 0
13 5.46870 14,937,000 14,937,000 84 82 10/11/12 0 0
14 5.46870 7,950,000 7,950,000 84 82 10/11/12 0 0
15 5.46870 7,567,000 7,567,000 84 82 10/11/12 0 0
5.58870 127,383,000 127,383,000 Various Various Various 0 0
16 5.58870 27,790,000 27,790,000 96 96 01/01/14 0 0
17 5.58870 22,600,000 22,600,000 84 84 01/01/13 0 0
18 5.58870 18,825,000 18,825,000 60 60 01/01/11 0 0
19 5.58870 14,100,000 14,100,000 72 72 01/01/12 0 0
20 5.58870 14,000,000 14,000,000 72 72 01/01/12 0 0
21 5.58870 12,750,000 12,750,000 60 60 01/01/11 0 0
22 5.58870 12,656,000 12,656,000 96 96 01/01/14 0 0
23 5.58870 4,662,000 4,662,000 96 96 01/01/14 0 0
24 5.54970 102,000,000 102,000,000 120 118 10/11/15 397 397
25 5.82970 96,590,000 96,590,000 120 120 12/05/15 360 360
25.01 23,500,000 23,500,000 120 120 360 360
25.02 12,100,000 12,100,000 120 120 360 360
25.03 17,700,000 17,700,000 120 120 360 360
25.04 8,740,000 8,740,000 120 120 360 360
25.05 4,400,000 4,400,000 120 120 360 360
25.06 7,400,000 7,400,000 120 120 360 360
25.07 8,750,000 8,750,000 120 120 360 360
25.08 14,000,000 14,000,000 120 120 360 360
26 5.61540 87,500,000 87,500,000 120 118 10/05/15 312 312
27 5.39270 87,500,000 87,219,826 120 117 09/01/15 360 357
27.01 14,500,000 14,453,571 120 117 360 357
27.02 18,000,000 17,942,364 120 117 360 357
27.03 55,000,000 54,823,891 120 117 360 357
28 5.74420 76,900,000 76,900,000 120 120 01/01/16 360 360
29 5.48570 75,000,000 75,000,000 120 119 11/11/15 360 360
30 5.16170 65,000,000 65,000,000 120 119 11/01/15 360 360
31 5.23970 62,000,000 62,000,000 120 115 07/05/15 360 360
31.01 16,104,979 16,104,979 120 115 360 360
31.02 - 120 115 360 360
31.03 - 120 115 360 360
31.04 33,378,197 33,378,197 120 115 360 360
31.05 - 120 115 360 360
31.06 - 120 115 360 360
31.07 - 120 115 360 360
31.08 - 120 115 360 360
31.09 - 120 115 360 360
31.10 12,516,824 12,516,824 120 115 360 360
31.11 - 120 115 360 360
31.12 - 120 115 360 360
31.13 - 120 115 360 360
31.14 - 120 115 360 360
32 5.22783 60,000,000 60,000,000 120 120 12/11/15 360 360
33 5.31970 55,000,000 54,883,848 120 118 10/11/15 360 358
34 4.88970 53,132,753 53,132,753 120 120 12/11/15 0 0
34.01 4.91000 1,785,611 1,785,611 120 120 0 0
34.02 4.91000 2,394,531 2,394,531 120 120 0 0
34.03 4.91000 2,376,299 2,376,299 120 120 0 0
34.04 4.91000 2,876,591 2,876,591 120 120 0 0
34.05 4.91000 2,546,576 2,546,576 120 120 0 0
34.06 4.91000 3,243,076 3,243,076 120 120 0 0
34.07 4.91000 1,925,721 1,925,721 120 120 0 0
34.08 4.91000 2,769,727 2,769,727 120 120 0 0
34.09 4.91000 2,903,228 2,903,228 120 120 0 0
34.10 4.91000 3,090,782 3,090,782 120 120 0 0
34.11 4.91000 2,370,307 2,370,307 120 120 0 0
34.12 4.91000 2,408,615 2,408,615 120 120 0 0
34.13 4.91000 2,173,794 2,173,794 120 120 0 0
34.14 4.91000 2,452,129 2,452,129 120 120 0 0
34.15 4.91000 2,117,318 2,117,318 120 120 0 0
34.16 4.91000 2,716,300 2,716,300 120 120 0 0
34.17 4.91000 1,664,992 1,664,992 120 120 0 0
34.18 4.91000 3,210,375 3,210,375 120 120 0 0
34.19 4.91000 1,682,285 1,682,285 120 120 0 0
34.20 4.91000 2,197,536 2,197,536 120 120 0 0
34.21 4.91000 2,855,375 2,855,375 120 120 0 0
34.22 4.91000 1,371,585 1,371,585 120 120 0 0
35 4.91970 47,499,720 47,499,720 60 60 12/11/10 0 0
36 5.09970 45,000,000 45,000,000 60 56 08/11/10 0 0
37 5.29970 44,500,000 44,500,000 120 118 10/11/15 360 360
38 5.47670 43,000,000 43,000,000 120 115 07/05/15 300 300
38.01 16,605,000 16,605,000 120 115 300 300
38.02 7,758,000 7,758,000 120 115 300 300
38.03 7,209,000 7,209,000 120 115 300 300
38.04 6,359,000 6,359,000 120 115 300 300
38.05 5,069,000 5,069,000 120 115 300 300
39 5.34970 32,650,000 32,650,000 120 117 09/01/15 360 360
40 4.76970 36,195,646 36,195,646 84 84 12/11/12 0 0
41 5.63970 35,000,000 35,000,000 120 120 12/01/15 360 360
5.16970 34,427,000 34,427,000 120 119 11/11/15 360 360
42 5.16970 21,054,000 21,054,000 120 119 11/11/15 360 360
43 5.16970 3,817,000 3,817,000 120 119 11/11/15 360 360
44 5.16970 4,305,000 4,305,000 120 119 11/11/15 360 360
45 5.16970 1,830,000 1,830,000 120 119 11/11/15 360 360
46 5.16970 3,421,000 3,421,000 120 119 11/11/15 360 360
47 5.09589 30,582,338 30,582,338 72 65 05/01/11 0 0
48 5.03970 28,500,000 28,500,000 120 120 01/01/16 360 360
49 5.50970 27,750,000 27,750,000 120 120 12/01/15 360 360
50 5.28970 27,200,000 27,200,000 120 117 09/01/15 360 360
51 5.34970 26,400,000 26,400,000 120 119 11/01/15 360 360
52 5.46870 26,000,000 26,000,000 84 82 10/11/12 0 0
53 5.42970 24,000,000 24,000,000 120 120 12/01/15 360 360
54 5.46970 21,658,000 21,658,000 120 120 01/01/16 360 360
55 6.37970 21,742,500 21,742,500 120 120 12/11/15 300 300
55.01 6.40000 6,300,000 6,300,000 120 120 300 300
55.02 6.40000 5,722,500 5,722,500 120 120 300 300
55.03 6.40000 5,377,500 5,377,500 120 120 300 300
55.04 6.40000 4,342,500 4,342,500 120 120 300 300
56 5.64970 21,554,000 21,554,000 120 120 12/01/15 360 360
57 5.87470 21,000,000 21,000,000 120 120 01/01/16 360 360
58 5.20970 20,750,000 20,750,000 120 120 12/11/15 360 360
59 5.11970 20,000,000 20,000,000 120 115 07/01/15 360 360
60 5.49470 19,000,000 19,000,000 120 120 12/01/15 360 360
61 5.16970 17,500,000 17,500,000 120 120 12/01/15 360 360
62 5.31970 17,300,000 17,300,000 60 57 09/11/10 0 0
63 5.67970 17,000,000 17,000,000 120 120 01/01/16 360 360
64 5.27970 17,000,000 17,000,000 84 84 12/01/12 360 360
65 5.54970 16,560,000 16,560,000 120 119 11/11/15 360 360
66 5.38970 16,400,000 16,400,000 120 118 10/11/15 360 360
66.01 5.41000 4,150,000 4,150,000 120 118 360 360
66.02 5.41000 5,300,000 5,300,000 120 118 360 360
66.03 5.41000 6,950,000 6,950,000 120 118 360 360
67 5.58970 16,293,000 16,293,000 120 120 12/01/15 360 360
67.01 5.63000 3,589,303 3,589,303 120 120 360 360
67.02 5.63000 5,450,185 5,450,185 120 120 360 360
67.03 5.63000 5,361,403 5,361,403 120 120 360 360
67.04 5.63000 1,892,110 1,892,110 120 120 360 360
68 5.05970 16,000,000 16,000,000 120 118 10/11/15 360 360
69 5.47970 15,505,000 15,505,000 120 120 12/01/15 360 360
70 5.37970 14,760,000 14,733,312 60 58 10/11/10 360 358
70.01 5.40000 7,760,000 7,745,969 60 58 360 358
70.02 5.40000 3,360,000 3,353,925 60 58 360 358
70.03 5.40000 3,640,000 3,633,418 60 58 360 358
71 5.23970 14,650,000 14,650,000 120 120 12/01/15 360 360
72 5.52970 14,400,000 14,400,000 120 120 01/01/16 360 360
73 5.13970 14,240,000 14,240,000 120 117 09/11/15 0 0
74 4.93970 14,000,000 14,000,000 120 119 11/01/15 360 360
75 5.07970 13,429,000 13,429,000 120 120 12/06/15 360 360
76 5.38440 13,270,000 13,270,000 120 120 01/01/16 360 360
77 5.75970 13,200,000 13,109,660 120 118 10/05/15 180 178
77.01 5,405,714 5,368,718 120 118 180 178
77.02 5,782,857 5,743,280 120 118 180 178
77.03 2,011,429 1,997,662 120 118 180 178
78 5.58970 13,000,000 13,000,000 120 118 10/01/15 360 360
79 5.38440 12,646,000 12,646,000 120 120 01/01/16 360 360
80 5.59970 12,600,000 12,600,000 120 120 01/05/16 360 360
81 5.23470 12,400,000 12,400,000 120 120 12/11/15 360 360
82 5.14970 12,185,000 12,185,000 120 118 10/11/15 360 360
83 5.07113 12,100,000 12,100,000 120 117 09/05/15 360 360
84 5.66970 11,850,000 11,850,000 120 119 11/01/15 360 360
85 5.59970 11,560,000 11,560,000 120 119 11/01/15 360 360
85.01 5.62000 7,800,000 7,800,000 120 119 360 360
85.02 5.62000 3,760,000 3,760,000 120 119 360 360
86 5.11970 11,500,000 11,500,000 120 117 09/11/15 360 360
87 5.63570 11,100,000 11,088,203 120 119 11/01/15 360 359
88 5.55970 11,080,000 11,080,000 120 119 11/11/15 0 0
89 5.15970 10,750,000 10,750,000 84 84 12/01/12 300 300
90 5.68970 10,500,000 10,500,000 240 240 12/01/25 240 240
91 5.44970 10,250,000 10,238,823 120 119 11/01/15 360 359
92 5.32970 9,600,000 9,600,000 120 120 12/01/15 360 360
93 5.54970 9,550,000 9,482,766 120 113 05/01/15 360 353
94 5.24970 9,400,000 9,400,000 120 117 09/11/15 360 360
95 4.94970 8,800,000 8,800,000 120 119 11/01/15 360 360
96 5.69970 8,750,000 8,750,000 240 240 12/11/25 240 240
97 5.88970 8,700,000 8,700,000 60 60 12/01/10 0 0
98 5.21970 8,680,000 8,680,000 120 119 11/01/15 360 360
98.01 5.29000 3,742,753 3,742,753 120 119 360 360
98.02 5.29000 1,990,825 1,990,825 120 119 360 360
98.03 5.29000 2,946,422 2,946,422 120 119 360 360
99 5.68970 8,650,000 8,650,000 120 120 12/11/15 360 360
100 5.42970 8,560,000 8,550,542 120 119 11/11/15 360 359
101 5.18970 8,250,000 8,250,000 108 108 01/01/15 360 360
102 5.40090 8,300,000 8,300,000 120 119 11/07/15 336 336
103 5.38440 8,150,000 8,150,000 120 120 01/01/16 360 360
104 5.58970 8,000,000 8,000,000 120 120 12/01/15 360 360
105 5.31970 8,000,000 7,983,105 120 118 10/07/15 360 358
106 4.95020 7,896,000 7,896,000 120 120 12/05/15 0 0
107 5.30970 7,600,000 7,600,000 120 120 12/01/15 360 360
108 5.69970 7,560,000 7,560,000 120 119 11/05/15 360 360
109 5.36970 7,500,000 7,500,000 120 120 01/01/16 360 360
110 5.59970 7,500,000 7,491,974 120 119 11/11/15 360 359
111 5.32970 7,300,000 7,300,000 120 120 12/01/15 360 360
112 5.47970 7,234,000 7,234,000 120 119 11/01/15 360 360
113 5.74470 7,200,000 7,200,000 120 116 08/05/15 360 360
114 5.20970 7,100,000 7,084,878 120 118 10/01/15 360 358
115 5.20970 7,000,000 7,000,000 120 119 11/11/15 360 360
116 5.37970 6,900,000 6,900,000 120 120 12/01/15 0 0
116.01 5.45000 2,925,000 2,925,000 120 120 0 0
116.02 5.45000 3,975,000 3,975,000 120 120 0 0
117 5.61970 6,880,000 6,880,000 120 120 12/01/15 360 360
118 5.14470 6,875,000 6,875,000 120 118 10/11/15 360 360
119 5.78470 6,500,000 6,500,000 120 120 12/05/15 360 360
120 5.34970 6,500,000 6,500,000 144 141 09/11/17 360 360
121 5.24970 6,500,000 6,486,067 120 118 10/11/15 360 358
122 5.70970 6,250,000 6,250,000 120 120 12/05/15 360 360
123 5.11970 6,200,000 6,113,307 120 114 06/01/15 240 234
124 5.50970 6,100,000 6,100,000 120 120 12/11/15 360 360
125 5.74970 6,100,000 6,093,655 180 179 11/11/20 360 359
126 5.31970 6,000,000 6,000,000 120 118 10/11/15 360 360
127 5.54970 6,000,000 6,000,000 144 144 12/01/17 360 360
128 5.17970 6,000,000 6,000,000 120 120 12/01/15 360 360
129 5.05970 6,000,000 6,000,000 120 120 12/01/15 360 360
130 5.25970 5,954,000 5,954,000 120 120 12/01/15 360 360
131 5.69970 5,850,000 5,850,000 120 120 12/01/15 360 360
132 5.36970 5,740,000 5,740,000 120 119 11/01/15 300 300
133 5.58970 5,600,000 5,600,000 120 120 12/11/15 360 360
134 5.87970 5,600,000 5,600,000 120 119 11/01/15 360 360
135 5.93970 5,600,000 5,600,000 120 120 01/01/16 360 360
136 5.13970 5,500,000 5,500,000 120 120 12/01/15 0 0
137 5.24970 5,400,000 5,400,000 120 119 11/01/15 360 360
138 5.34100 5,325,000 5,325,000 120 118 10/05/15 360 360
139 5.46970 5,300,000 5,300,000 120 115 07/11/15 360 360
140 5.07970 5,057,000 5,057,000 120 120 12/06/15 360 360
141 5.15970 4,900,000 4,900,000 120 118 10/11/15 360 360
142 6.95970 4,900,000 4,900,000 216 216 12/01/23 360 360
143 5.42770 4,900,000 4,878,060 120 118 10/05/15 240 238
144 5.28970 4,800,000 4,779,504 120 116 08/01/15 360 356
145 5.35970 4,760,000 4,754,711 120 119 11/01/15 360 359
146 5.82970 4,500,000 4,500,000 120 120 12/11/15 360 360
147 5.28970 4,500,000 4,500,000 120 120 12/01/15 300 300
148 5.43970 4,400,000 4,395,166 120 119 11/01/15 360 359
149 5.64970 4,300,000 4,290,324 240 239 11/11/25 240 239
150 5.32970 4,200,000 4,200,000 120 119 11/01/15 300 300
151 5.29970 4,200,000 4,195,307 120 119 11/01/15 360 359
152 5.70970 4,190,000 4,190,000 120 120 12/01/15 360 360
153 5.31970 4,190,000 4,159,390 120 113 05/05/15 360 353
154 5.42970 4,080,000 4,080,000 120 119 11/11/15 360 360
155 5.59970 4,000,000 4,000,000 120 120 12/01/15 264 264
156 5.56970 3,760,000 3,752,475 120 118 10/11/15 360 358
157 4.58970 3,570,000 3,570,000 60 59 11/11/10 0 0
158 5.09970 3,500,000 3,500,000 120 118 10/01/15 0 0
159 5.09970 3,450,000 3,445,946 120 119 11/11/15 360 359
160 5.53970 3,424,000 3,420,343 120 119 11/01/15 360 359
161 5.69970 3,300,000 3,300,000 84 84 12/11/12 360 360
162 6.45970 3,275,000 3,269,657 216 214 10/01/23 360 358
163 5.07970 3,151,000 3,151,000 120 120 12/06/15 360 360
164 5.71970 3,100,000 3,096,757 120 119 11/01/15 360 359
165 5.82970 3,100,000 3,079,487 120 113 05/05/15 360 353
166 5.38970 3,050,000 3,050,000 120 119 11/05/15 360 360
167 5.53970 3,050,000 3,045,674 120 119 11/01/15 312 311
168 5.46970 3,035,036 3,035,036 120 119 11/11/15 360 360
169 5.05970 3,000,000 3,000,000 120 120 12/01/15 360 360
170 5.13970 2,880,000 2,873,682 120 118 10/06/15 360 358
171 5.07970 2,840,000 2,840,000 120 120 12/06/15 360 360
172 5.09970 2,800,000 2,790,562 120 117 09/01/15 360 357
173 5.48970 2,700,000 2,700,000 120 114 06/01/15 360 360
174 5.09970 2,700,000 2,700,000 120 118 10/01/15 0 0
175 5.17970 2,550,000 2,547,048 120 119 11/11/15 360 359
176 5.82970 2,550,000 2,542,867 120 118 10/11/15 300 298
177 5.67280 2,550,000 2,534,882 120 114 06/05/15 360 354
178 5.29970 2,500,000 2,494,698 120 118 10/11/15 360 358
179 4.61970 2,476,400 2,476,400 60 59 11/11/10 0 0
180 5.49970 2,400,000 2,397,383 120 119 11/05/15 360 359
181 5.85970 2,255,000 2,255,000 120 120 01/01/16 360 360
182 5.07970 2,246,000 2,246,000 120 120 12/06/15 360 360
183 5.64970 2,125,000 2,120,218 240 239 11/11/25 240 239
184 5.70970 1,765,000 1,765,000 120 120 12/05/15 300 300
185 5.60970 1,750,000 1,750,000 120 120 12/05/15 300 300
186 5.64970 1,750,000 1,742,382 240 238 10/11/25 240 238
187 5.41970 1,650,000 1,643,278 120 116 08/05/15 360 356
188 5.19970 1,620,000 1,620,000 120 120 12/11/15 0 0
189 5.87470 1,600,000 1,600,000 84 84 12/11/12 360 360
190 5.35970 1,500,000 1,500,000 120 118 10/11/15 360 360
191 5.12970 1,500,000 1,481,009 120 118 10/11/15 120 118
192 5.64970 1,300,000 1,298,632 120 119 11/11/15 360 359
193 5.64970 1,225,000 1,219,668 240 238 10/11/25 240 238
194 5.64970 1,000,000 998,948 120 119 11/11/15 360 359
195 5.64970 870,000 866,213 240 238 10/11/25 240 238
HGTSCL 5.63700 130,000,000 130,000,000 120 120 12/01/15 0 0
------------------------------------------------------------------------------------------------------------------------------------
Monthly Debt Servicing ARD
Loan # Service Fee Rate Accrual Type (Y/N) ARD Step Up (%) Title Type
-----------------------------------------------------------------------------------------------------------------------------------
1 1,781,372 0.02000 Actual/360 No Fee/Leasehold
1.01 Fee
1.02 Fee
1.03 Leasehold
1.04 Leasehold
1.05 Leasehold
1.06 Fee
1.07 Fee
1.08 Fee
1.09 Fee
1.10 Fee
1.11 Fee
1.12 Fee
1.13 Fee
1.14 Fee
1.15 Fee
1.16 Fee
1.17 Fee
1.18 Fee
1.19 Fee
1.20 Fee
1.21 Fee
2 1,309,415 0.02000 Actual/360 No Fee
3 1,179,165 0.03000 Actual/360 No Fee
3.01 Fee
3.02 Fee
3.03 Fee
3.04 Fee
3.05 Fee
3.06 Fee
3.07 Fee
4 807,478 0.02000 Actual/360 No Fee
5 906,235 0.02000 Actual/360 No Fee
6 909,165 0.02000 30/360 No Fee
7 623,780 0.02000 Actual/360 No Fee
7.01 Fee
7.02 Fee
7.03 Fee
7.04 Fee
7.05 Fee
7.06 Fee
7.07 Fee
7.08 Fee
7.09 Fee
7.10 Fee
7.11 Fee
7.12 Fee
7.13 Fee
7.14 Fee
7.15 Fee
7.16 Fee
7.17 Fee
7.18 Fee
7.19 Fee
7.20 Fee
7.21 Fee
7.22 Fee
7.23 Fee
7.24 Fee
7.25 Fee
7.26 Fee
7.27 Fee
7.28 Fee
7.29 Fee
7.30 Fee
602,901 0.02000 Actual/360 No Fee
8 113,624 0.02000 Actual/360 No Fee
9 98,783 0.02000 Actual/360 No Fee
10 96,770 0.02000 Actual/360 No Fee
11 83,108 0.02000 Actual/360 No Fee
12 69,380 0.02000 Actual/360 No Fee
13 69,273 0.02000 Actual/360 No Fee
14 36,870 0.02000 Actual/360 No Fee
15 35,093 0.02000 Actual/360 No Fee
603,679 0.02000 Actual/360 No Fee
16 131,699 0.02000 Actual/360 No Fee
17 107,103 0.02000 Actual/360 No Fee
18 89,213 0.02000 Actual/360 No Fee
19 66,821 0.02000 Actual/360 No Fee
20 66,347 0.02000 Actual/360 No Fee
21 60,423 0.02000 Actual/360 No Fee
22 59,978 0.02000 Actual/360 No Fee
23 22,094 0.02000 Actual/360 No Fee
24 562,942 0.02000 Actual/360 No Fee
25 569,824 0.02000 Actual/360 No Fee
25.01 Fee
25.02 Fee
25.03 Fee
25.04 Fee
25.05 Fee
25.06 Fee
25.07 Fee
25.08 Fee
26 534,939 0.02000 Actual/360 No NAP Fee
27 492,050 0.02000 Actual/360 No Fee
27.01 Fee
27.02 Fee
27.03 Fee
28 449,476 0.02000 Actual/360 No Fee
29 426,124 0.02000 Actual/360 No Fee
30 356,200 0.02000 Actual/360 No Leasehold
31 342,750 0.02000 Actual/360 No NAP Fee
31.01 Fee
31.02 Fee
31.03 Fee
31.04 Fee
31.05 Fee
31.06 Fee
31.07 Fee
31.08 Fee
31.09 Fee
31.10 Fee
31.11 Fee
31.12 Fee
31.13 Fee
31.14 Fee
32 331,253 0.02000 Actual/360 No Fee
Greater of Initial Rate + 2.00% or
33 306,785 0.02000 Actual/360 Yes Treasury + 2.00% Fee
34 217,402 0.02000 30/360 No Fee
34.01 0.00000 Fee
34.02 0.00000 Fee
34.03 0.00000 Fee
34.04 0.00000 Fee
34.05 0.00000 Fee
34.06 0.00000 Fee
34.07 0.00000 Fee
34.08 0.00000 Fee
34.09 0.00000 Fee
34.10 0.00000 Fee
34.11 0.00000 Fee
34.12 0.00000 Fee
34.13 0.00000 Fee
34.14 0.00000 Fee
34.15 0.00000 Fee
34.16 0.00000 Fee
34.17 0.00000 Fee
34.18 0.00000 Fee
34.19 0.00000 Fee
34.20 0.00000 Fee
34.21 0.00000 Fee
34.22 0.00000 Fee
35 195,541 0.02000 30/360 No Fee/Leasehold
36 194,667 0.02000 Actual/360 No Leasehold
37 243,794 0.02000 Actual/360 No Fee
38 263,981 0.02000 Actual/360 No NAP Fee
38.01 0.00000 Fee
38.02 0.00000 Fee
38.03 0.00000 Fee
38.04 0.00000 Fee
38.05 0.00000 Fee
39 182,729 0.02000 Actual/360 No Fee
40 144,481 0.02000 30/360 No Fee
41 203,362 0.07000 Actual/360 No Fee
189,681 0.06000 Actual/360 No Fee
42 116,000 0.06000 Actual/360 No Fee
43 21,030 0.06000 Actual/360 No Fee
44 23,719 0.06000 Actual/360 No Fee
45 10,083 0.06000 Actual/360 No Fee
46 18,849 0.06000 Actual/360 No Fee
47 132,452 0.02981 Actual/360 No Fee
48 154,741 0.06000 Actual/360 No Fee
49 158,782 0.06000 Actual/360 No Fee
50 151,889 0.06000 Actual/360 No Fee
51 148,079 0.04000 Actual/360 No Fee
52 120,580 0.02000 Actual/360 No Fee
53 135,818 0.04000 Actual/360 No Fee
54 123,108 0.04000 Actual/360 No Fee
55 145,451 0.02000 Actual/360 No Fee
55.01 0.00000 Fee
55.02 0.00000 Fee
55.03 0.00000 Fee
55.04 0.00000 Fee
56 124,963 0.04000 Actual/360 No Fee
57 124,760 0.04000 Actual/360 No Fee
58 114,325 0.02000 Actual/360 No Fee
59 109,699 0.07000 Actual/360 No Fee
60 108,059 0.02000 Actual/360 No Fee
61 95,986 0.02000 Actual/360 No Fee/Leasehold
62 78,054 0.02000 Actual/360 No Fee
63 99,315 0.08000 Actual/360 No Fee/Leasehold
64 94,402 0.02000 Actual/360 No Fee
65 94,754 0.02000 Actual/360 No Fee
66 92,193 0.02000 Actual/360 No Fee
66.01 0.00000 Fee
66.02 0.00000 Fee
66.03 0.00000 Fee
67 93,843 0.04000 Actual/360 No Fee
67.01 0.00000 Fee
67.02 0.00000 Fee
67.03 0.00000 Fee
67.04 0.00000 Fee
68 86,675 0.02000 Actual/360 No Fee
69 88,523 0.07000 Actual/360 No Fee
70 80,920 0.02000 Actual/360 No Fee
70.01 0.00000 Fee
70.02 0.00000 Fee
70.03 0.00000 Fee
71 81,443 0.07000 Actual/360 No Fee
72 82,667 0.07000 Actual/360 No Fee
73 62,082 0.02000 Actual/360 No Fee
74 74,984 0.04000 Actual/360 No Fee
75 72,913 0.02000 Actual/360 No Fee
76 74,554 0.02000 Actual/360 No Fee
77 110,039 0.05000 Actual/360 No NAP Fee
77.01 0.00000 Fee
77.02 0.00000 Fee
77.03 0.00000 Fee
78 74,876 0.04000 Actual/360 No Fee
79 71,048 0.02000 Actual/360 No Fee
80 72,493 0.02000 Actual/360 No NAP Fee
81 68,512 0.02000 Actual/360 No Fee
82 66,684 0.02000 Actual/360 No Fee
83 65,856 0.05000 Actual/360 No NAP Fee
84 69,078 0.07000 Actual/360 No Fee
85 66,509 0.02000 Actual/360 No Fee
85.01 0.00000 Fee
85.02 0.00000 Fee
86 62,722 0.02000 Actual/360 No Fee
87 64,115 0.02000 Actual/360 No NAP Fee
Greater of Initial Rate + 2.00%
88 52,238 0.02000 Actual/360 Yes or Treasury + 5.00% Fee
89 63,976 0.02000 Actual/360 No Fee
90 73,479 0.02000 Actual/360 No Fee
91 58,327 0.07000 Actual/360 No Fee
92 53,608 0.02000 Actual/360 No Fee
93 54,644 0.02000 Actual/360 No Fee
94 52,024 0.02000 Actual/360 Yes Greater of Rate + 4.0% or Treasury + 4.0% Fee
95 47,348 0.07000 Actual/360 No Fee
96 61,283 0.02000 Actual/360 No Fee
97 44,104 0.11000 Actual/360 No Fee
98 48,147 0.07000 Actual/360 No Fee
98.01 0.00000 Fee
98.02 0.00000 Fee
98.03 0.00000 Fee
99 50,259 0.02000 Actual/360 No Fee
100 48,335 0.02000 Actual/360 No Fee
101 45,455 0.04000 Actual/360 No Fee
102 48,067 0.02000 Actual/360 No NAP Fee
103 45,789 0.02000 Actual/360 No Fee
104 45,977 0.02000 Actual/360 No Fee
105 44,623 0.02000 Actual/360 No NAP Fee
106 33,160 0.02000 Actual/360 No NAP Fee
107 42,676 0.09000 Actual/360 No Fee
108 43,974 0.02000 Actual/360 No NAP Fee
109 42,302 0.07000 Actual/360 No Fee
110 43,151 0.02000 Actual/360 No Fee
111 40,764 0.02000 Actual/360 No Fee
112 41,347 0.08000 Actual/360 No Fee
113 42,361 0.08000 Actual/360 No NAP Fee
114 39,427 0.09000 Actual/360 No Fee
115 38,568 0.02000 Actual/360 No Fee
116 31,773 0.07000 Actual/360 No Fee
116.01 0.00000 Fee
116.02 0.00000 Fee
117 39,670 0.02000 Actual/360 No Fee
118 37,603 0.02000 Actual/360 No Fee
119 38,160 0.02000 Actual/360 No NAP Fee
120 36,378 0.02000 Actual/360 No Fee
121 35,974 0.02000 Actual/360 No Fee
122 36,394 0.02000 Actual/360 No NAP Fee
123 41,605 0.08000 Actual/360 No Fee
124 34,750 0.02000 Actual/360 No Fee
125 35,675 0.02000 Actual/360 No Fee
126 33,467 0.02000 Actual/360 No Fee
127 34,558 0.08000 Actual/360 No Fee
128 32,947 0.02000 Actual/360 No Fee
129 32,762 0.09000 Actual/360 No Fee
130 33,248 0.09000 Actual/360 No Fee
131 34,176 0.06000 Actual/360 No Fee
132 35,077 0.08000 Actual/360 No Fee
133 32,184 0.02000 Actual/360 No Fee
134 33,287 0.04000 Actual/360 No Leasehold
135 33,503 0.04000 Actual/360 No Fee
136 24,211 0.07000 Actual/360 No Fee
137 29,886 0.02000 Actual/360 No Fee
138 29,773 0.02000 Actual/360 No NAP Fee
139 30,060 0.02000 Actual/360 No Fee
140 27,457 0.02000 Actual/360 No Fee
141 26,846 0.02000 Actual/360 No Fee
142 32,600 0.04000 Actual/360 No Fee
143 33,563 0.02000 Actual/360 No NAP Fee
144 26,684 0.02000 Actual/360 No Fee
145 26,788 0.06000 Actual/360 No Fee
146 26,547 0.02000 Actual/360 No Fee
147 27,179 0.04000 Actual/360 No Fee
148 24,928 0.04000 Actual/360 No Fee
149 29,994 0.02000 Actual/360 No Fee
150 25,417 0.02000 Actual/360 No Fee
151 23,558 0.09000 Actual/360 No Fee
152 24,638 0.11000 Actual/360 No Fee
153 23,528 0.08000 Actual/360 No NAP Fee
154 23,038 0.02000 Actual/360 No Fee
155 26,549 0.07000 Actual/360 No Fee
156 21,562 0.02000 Actual/360 No Fee
157 13,715 0.02000 30/360 No Fee
158 15,200 0.04000 Actual/360 No Fee
159 18,774 0.02000 Actual/360 No Fee
160 19,721 0.09000 Actual/360 No Fee
161 19,195 0.02000 Actual/360 No Fee
162 20,700 0.04000 Actual/360 No Fee
163 17,108 0.02000 Actual/360 No Fee
164 18,071 0.02000 Actual/360 No Fee
165 18,288 0.02000 Actual/360 No NAP Fee
166 17,146 0.02000 Actual/360 No NAP Fee
167 18,636 0.09000 Actual/360 No Fee
168 17,366 0.10000 Actual/360 No Fee
169 16,381 0.09000 Actual/360 No Fee
170 15,743 0.02000 Actual/360 No Fee
171 15,420 0.02000 Actual/360 No Fee
172 15,306 0.06000 Actual/360 No Fee
173 15,347 0.02000 Actual/360 No Fee
174 11,726 0.04000 Actual/360 No Fee
175 14,002 0.02000 Actual/360 No Fee
176 16,197 0.02000 Actual/360 No Fee
177 14,789 0.02000 Actual/360 No NAP Fee
178 13,914 0.02000 Actual/360 No Fee
Lessor of maximum rate permitted
179 9,575 0.02000 30/360 Yes by applicable law or 2.00% + Intitial Rate Fee
180 13,657 0.02000 Actual/360 No NAP Fee
181 13,375 0.04000 Actual/360 No Fee
182 12,195 0.02000 Actual/360 No Fee
183 14,822 0.02000 Actual/360 No Fee
184 11,179 0.11000 Actual/360 No NAP Fee
185 10,883 0.02000 Actual/360 No Fee
186 12,207 0.02000 Actual/360 No Fee
187 9,400 0.11000 Actual/360 No NAP Fee
188 7,145 0.02000 Actual/360 No Fee
189 9,485 0.02000 Actual/360 No Fee
190 8,404 0.02000 Actual/360 No Fee
191 16,020 0.02000 Actual/360 No Fee
192 7,553 0.06000 Actual/360 No Fee
193 8,545 0.02000 Actual/360 No Fee
194 5,810 0.06000 Actual/360 No Fee
195 6,068 0.02000 Actual/360 No Fee
HGTSCL 621,386 0.02000 Actual/360 No Fee
-----------------------------------------------------------------------------------------------------------------------------------
Originator/
Loan # Crossed Loan Loan Seller Guarantor
------------------------------------------------------------------------------------------------------------------------------------
1 6 EHY None
1.01 EHY
1.02 EHY
1.03 EHY
1.04 EHY
1.05 EHY
1.06 EHY
1.07 EHY
1.08 EHY
1.09 EHY
1.10 EHY
1.11 EHY
1.12 EHY
1.13 EHY
1.14 EHY
1.15 EHY
1.16 EHY
1.17 EHY
1.18 EHY
1.19 EHY
1.20 EHY
1.21 EHY
2 JPMCB Simon Property Group, L.P.
3 JPMCB Xxxxxx Xxxxx
3.01 JPMCB
3.02 JPMCB
3.03 JPMCB
3.04 JPMCB
3.05 JPMCB
3.06 JPMCB
3.07 JPMCB
4 NCCI Xxxxx Xxxxxxxx
5 EHY GGP Limited Partnership
Xxxx X. Xxxxxxx, C.A. "Bud" Xxxxxxx, Xxxxxxx X. Julmy, Xxxxx X.
6 EHY Xxxxxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx
7 JPMCB Colonial Properties Trust
7.01 JPMCB
7.02 JPMCB
7.03 JPMCB
7.04 JPMCB
7.05 JPMCB
7.06 JPMCB
7.07 JPMCB
7.08 JPMCB
7.09 JPMCB
7.10 JPMCB
7.11 JPMCB
7.12 JPMCB
7.13 JPMCB
7.14 JPMCB
7.15 JPMCB
7.16 JPMCB
7.17 JPMCB
7.18 JPMCB
7.19 JPMCB
7.20 JPMCB
7.21 JPMCB
7.22 JPMCB
7.23 JPMCB
7.24 JPMCB
7.25 JPMCB
7.26 JPMCB
7.27 JPMCB
7.28 JPMCB
7.29 JPMCB
7.30 JPMCB
NCCI Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxx
8 2 NCCI Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxx
9 2 NCCI Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxx
10 2 NCCI Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxx
11 2 NCCI Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxx
12 2 NCCI Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxx
13 2 NCCI Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxx
14 2 NCCI Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxx
15 2 NCCI Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxx
JPMCB Colony Capital
16 3 JPMCB Colony Capital
17 3 JPMCB Colony Capital
18 3 JPMCB Colony Capital
19 3 JPMCB Colony Capital
20 3 JPMCB Colony Capital
21 3 JPMCB Colony Capital
22 3 JPMCB Colony Capital
23 3 JPMCB Colony Capital
24 EHY Xxxxxx Xxxxxxxx, Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx
25 EHY Xxxxxx X'Xxxxxx, Xxxxxxx X. Xxxxxxx, Xxxx X. Xxxxxx
25.01 EHY
25.02 EHY
25.03 EHY
25.04 EHY
25.05 EHY
25.06 EHY
25.07 EHY
25.08 EHY
26 IXIS Gregory Greenfield & Associates, Ltd
27 JPMCB ING Real Estate Management Limited
27.01 JPMCB
27.02 JPMCB
27.03 JPMCB
28 JPMCB Rubin Schron
29 EHY Rubin Schron
30 NCCI NC Venture, LLC
31 IXIS Sydney Engel, Jan Burman and Lewis Henkind
31.01 IXIS
31.02 IXIS
31.03 IXIS
31.04 IXIS
31.05 IXIS
31.06 IXIS
31.07 IXIS
31.08 IXIS
31.09 IXIS
31.10 IXIS
31.11 IXIS
31.12 IXIS
31.13 IXIS
31.14 IXIS
32 EHY Millennium CAF II LLC
33 NCCI None
Inland Western New York Portfolio, L.L.C., Inland
34 NCCI Western Retail Real Estate Trust, Inc.
34.01 NCCI
34.02 NCCI
34.03 NCCI
34.04 NCCI
34.05 NCCI
34.06 NCCI
34.07 NCCI
34.08 NCCI
34.09 NCCI
34.10 NCCI
34.11 NCCI
34.12 NCCI
34.13 NCCI
34.14 NCCI
34.15 NCCI
34.16 NCCI
34.17 NCCI
34.18 NCCI
34.19 NCCI
34.20 NCCI
34.21 NCCI
34.22 NCCI
Inland Western Worcester Lincoln Plaza, L.L.C., Inland
35 NCCI Western Retail Real Estate Trust, Inc.
36 NCCI Harry Macklowe
37 NCCI Marvin Romanek
38 IXIS Robert S. Cole
38.01 IXIS
38.02 IXIS
38.03 IXIS
38.04 IXIS
38.05 IXIS
39 AIG Alfred E. D'Ancona III
40 NCCI Inland Western Retail Real Estate Trust, Inc.
41 PNC Raleigh Officentre Associates, L.L.C.
NCCI Harry J. Fath
42 4 NCCI Harry J. Fath
43 4 NCCI Harry J. Fath
44 4 NCCI Harry J. Fath
45 4 NCCI Harry J. Fath
46 4 NCCI Harry J. Fath
47 JPMCB Lexington Corporate PropertiesTrust
48 PNC Farmington Hills Corporate Investors-II, L.L.C.
49 PNC John F. Karubian
MBS Strategic Acquisitions, LLC and CB Richard Ellis
50 PNC Investors/US Advisor, LLC
51 PNC Michael B. Smuck, Edward White
52 NCCI David M. Rosenberg, Dale S. Okonow
53 PNC Case Creekwood Apartments Limited Partnership
54 PNC Steve Chapman, Nicholas Porcaro, John Halvorsen
55 EHY Walter K. Morris, Timothy K. Sanford
55.01 EHY
55.02 EHY
55.03 EHY
55.04 EHY
56 PNC Stephen M. Chapman, Nicholas C. Porcaro, John H. Halvorsen
57 JPMCB Infrastructure Capital Group, LLC
58 EHY The Foundry Associates, L.P.
59 JPMCB Guardian Realty Investments LLLP
60 JPMCB Salvatore Gaudio, Robert Malta
61 JPMCB Edward R. Feinberg, Rex S. Ruthman
62 EHY Andrew Stewart, John Foresi
BayWoods Cooperative Housing Corporation, BayWoods
63 JPMCB Services Corporation
CB Richard Ellis Investors/U.S. Advisor, LLC, Greystar
64 JPMCB Management Services, L.P.
65 EHY Lamar Western L.P.
66 NCCI Robert A. Whelan, James M. Cope, Patrick K. Dempsey
66.01 NCCI
66.02 NCCI
66.03 NCCI
67 PNC David Starr
67.01 PNC
67.02 PNC
67.03 PNC
67.04 PNC
68 NCCI Cottonwood Capital, LLC, Daniel W. Shaeffer, Chad Christensen
69 PNC Ashforth Properties, Inc
70 EHY Gregory G. Evans
70.01 EHY
70.02 EHY
70.03 EHY
71 JPMCB Peter Abrams, Fred R. Levine, Dennis McCarthy, Michael McCarthy
72 JPMCB Bill W. Schwyhart, Robert B. Thornton, Timothy G. Graham
73 5 EHY Lakshmi Desia
74 PNC Case-Winchester Limited Partnership
75 NCCI Joseph Fryzer
76 JPMCB Hometown America, L.L.C.
77 IXIS Hardepp Chawla
77.01 IXIS
77.02 IXIS
77.03 IXIS
78 PNC John R. McWhirter, Jeanette D. McWhirter
79 JPMCB Hometown America, L.L.C.
80 IXIS Fahmy Mushmel
81 EHY Dennis J. Wong
82 NCCI Continental Properties Company, Inc.
83 IXIS Mark Vakili, Mohsen Sharif and Albert Minoofar
84 PNC Lewis H. Wiens
85 JPMCB Harold Rosenblum, Woodlark Opportunity Fund LLC
85.01 JPMCB
85.02 JPMCB
86 NCCI Paul S. Fingersh
87 IXIS Nordahl Brue, Michael Dressell and Steven Schonberg
Timothy F. Haldeman, The Haldeman Family Revocable Trust,
88 NCCI Palisades Investors, Inc.
89 JPMCB W.P. Carey & Co. LLC
90 JPMCB Corporate Property Associates 16-Global Incorporated
91 PNC Giancarlo DeAngelis, Patrick Raye
92 JPMCB Dennis J. Doyle
93 AIG Robert A. Goldenberg, The Goldenburg Group
94 NCCI Mohsen Sharif, Mark Vakili, Albert Minoofar
95 PNC Jacob Taban
96 NCCI Russell P. Wurster
William P. Buckley, Teresa M. Buckley, Brian R. Saltzman and Pamela
Saltzman, Gary R. Perez, Steven D. Erickson, LLC, David L. Comstock
and Susan C. Comstock, Joni D. Kroll, Christopher Poon and Florence
Poon, Felix F. Lorenzo, Rina A. Lorenzo, David A. Janisch and Gail K.
Janisch, Clayton R. Darsey, William A. Cook, II, Becky A. Cook, Nathan
97 JPMCB W. Hanks, Attila Hethely, George W. Beeman, Jr., Claudia J. Beeman
98 JPMCB Michael Samschick
98.01 JPMCB
98.02 JPMCB
98.03 JPMCB
99 EHY Arnold Galman
100 NCCI David A. Nyugen, Mary H. Truong
101 PNC Peyman Daneshrad
102 IXIS Mark Kanter and Leo Goodwin
103 JPMCB Hometown America, L.L.C.
104 JPMCB Eric West, Gary Schlager, Richard Lane, Alan Zuckerman, Andrew Glick
105 IXIS Jay Schochet
106 IXIS Mark Weinstein
107 PNC Bruce Wechsler
108 IXIS Ted N. Prince Sr.
109 JPMCB Bruce L. Christenson
110 EHY Robert E. Chapman
111 JPMCB Arnold C. Kirkeby, Carla M. Kirkeby
112 PNC Victoria Ebel-Sabo
113 IXIS Nathan A. Shor
114 PNC Larry Shaver, Michael McClure, Steve Jones
115 NCCI Floyd E. Damschen
116 JPMCB Robert L. Denton, Mary Jane L. Denton
116.01 JPMCB
116.02 JPMCB
117 JPMCB SW - Cypresswood, L.P.
118 EHY Francis Greenburger
119 IXIS Land Securities Investors, Ltd.
120 EHY Scott Dew, Isaac Pachulski, Richard Pachulski, and Nathan Rubin
121 NCCI Peter G. DeBaun, Cynthia M. Debaun
122 IXIS The Schomac Group, Inc. and W. Michael Schoff
123 NCCI Gary W. Gates, Jr.
124 EHY Fredric Slater, Robert Slater
125 NCCI None
126 EHY Ronald D. Strawn, Stephen J. Garchik
127 JPMCB R. Dixon H. Harvey, Jr., David I. Bavar
128 JPMCB Jack Slomovic, David Slomovic
129 PNC Bruce Wechsler
130 PNC Michael A. Christie, David F. Ball, Michael J. Beal
131 JPMCB David R. Osborn
132 JPMCB Patrick Gaughan
133 EHY David Morgan
134 PNC Jerzy Kosla, Celina Kosla
135 PNC Ali Shaygan
136 JPMCB The Summit Real Estate, LLC
137 JPMCB David Scott Watson
138 IXIS Marc F. Solomon
139 NCCI The Gregory A. Fowler Living Trust
140 NCCI Joseph Fryzer
141 NCCI Kent A. Price
142 PNC KPE Development, L.L.C.
143 IXIS Mark Investments, Inc and Andrew B. Widmark
144 AIG David and Douglas Baum, Baum Realty Group, Inc.
145 PNC Joel L. Altman, Roberto Lavallii
Robert E. Chapman, Robert A. Ewert, Joseph James
146 EHY Mastrantonio, Jr., Elizabeth Mary Mastrantonio
Henry J. DiDonato, David G. Bull, David J. Grayson, Martin J. Kelly,
147 PNC Lawrence D. Chang, Michael Vassallo
148 PNC Nazir Bhagat
149 NCCI Russell P. Wurster
150 AIG Edwin Freedman
151 PNC Larry L. Haith, Myron W. Haith, Scott I. Asner, Barry D. Price
152 JPMCB Joe H. Duffy
153 IXIS Michael A. Klump
154 NCCI Robert D. Bronstein
155 JPMCB Frank H. Chapman II
156 NCCI H. William Walter
157 NCCI Inland Real Estate Investment Corporation
158 PNC Michael B. Green, Alfred Kahn
159 NCCI Thomas C. Chronister
160 PNC Jerry L. Knight, D. Michael Ryan
161 EHY Vista Management Company and Vista Equities Group, Inc.
162 PNC Orchard Park II, LLC, J.H.Thames, Jr., Rodney F. Triplett, Jr.
163 NCCI Joseph Fryzer
164 AIG Robert Halliday, III
165 IXIS Karan Kumar and Thomas Lawless
166 IXIS G. Giovanni Giammarco, Marino Giammarco and Anne Giammarco
167 PNC Richard Noon, David Noon
168 NCCI Paul Moldon
169 PNC Bruce Wechsler
170 NCCI Bret P. Mosher
171 NCCI Joseph Fryzer
172 PNC Michael Tennyson, Patrick Tlustos
173 EHY Hebert D. Weitzman
174 PNC Michael B. Green, Alfred Kahn
175 NCCI Peter G. DeBaun, Cynthia M. Debaun
176 NCCI Miguel Quintela, Josefa Quintela
177 IXIS Daniel Katz and Richard Katz
178 NCCI Peter G. DeBaun, Cynthia M. DeBaun
179 NCCI Inland Western Retail Real Estate Trust, Inc.
180 IXIS George Gelsebach and Albert J. Gopin
181 PNC Jerry Klein, Deborah Klein
182 NCCI Joseph Fryzer
183 NCCI Russell P. Wurster
184 IXIS Kenneth P. Balin, Train Court Real Estate, LLC and AMC Real Estate L.P.
185 NCCI David N. Olson, Carol B. Olson
186 1 NCCI Russell P. Wurster
187 IXIS Eve Picker
188 5 EHY Lakshmi Desia
189 EHY Vista Management Company and Vista Equities Group, Inc.
190 NCCI The Kulish Family Limited Liability Company II
191 NCCI Russell P. Wurster
192 NCCI Laszlo Regos
193 NCCI Russell P. Wurster
194 NCCI Laszlo Regos
195 1 NCCI Russell P. Wurster
HGTSCL JPMCB Simon Property Group, L.P.
------------------------------------------------------------------------------------------------------------------------------------
UPFRONT ESCROW
---------------------------------------------------------------------------------------------------
Upfront
Letter of CapEx Upfront Eng. Upfront Envir. Upfront TI/LC Upfront RE
Loan # Credit Reserve Reserve Reserve Reserve Tax Reserve
------------------------------------------------------------------------------------------------------------------------------------
1 No 0.00 0.00 0.00 20,843,013.00 6,091,009.00
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
2 No 0.00 0.00 0.00 0.00 0.00
3 No 0.00 0.00 200,000.00 11,388,038.00 756,736.00
3.01
3.02
3.03
3.04
3.05
3.06
3.07
4 No 0.00 2,276,773.00 0.00 11,947,695.00 618,675.42
5 No 0.00 0.00 0.00 0.00 0.00
6 3,600,000.0 0.00 199,000.00 0.00 1,579,000.00 1,123,333.00
7 No 87,500.00 0.00 0.00 0.00 0.00
7.01
7.02
7.03
7.04
7.05
7.06
7.07
7.08
7.09
7.10
7.11
7.12
7.13
7.14
7.15
7.16
7.17
7.18
7.19
7.20
7.21
7.22
7.23
7.24
7.25
7.26
7.27
7.28
7.29
7.30
No 0.00 435,625.00 0.00 0.00 272,481.67
8 No 0.00 45,000.00 0.00 0.00 42,668.22
9 No 0.00 8,125.00 0.00 0.00 40,254.66
10 No 0.00 56,875.00 0.00 0.00 39,576.25
11 No 0.00 10,000.00 0.00 0.00 67,442.61
12 No 0.00 36,875.00 0.00 0.00 25,673.64
13 No 0.00 43,750.00 0.00 0.00 26,934.03
14 No 0.00 228,125.00 0.00 0.00 17,349.95
15 No 0.00 6,875.00 0.00 0.00 12,582.31
No 0.00 0.00 0.00 0.00 0.00
16 No 0.00 0.00 0.00 0.00 0.00
17 No 0.00 0.00 0.00 0.00 0.00
18 No 0.00 0.00 0.00 0.00 0.00
19 No 0.00 0.00 0.00 0.00 0.00
20 No 0.00 0.00 0.00 0.00 0.00
21 No 0.00 0.00 0.00 0.00 0.00
22 No 0.00 0.00 0.00 0.00 0.00
23 No 0.00 0.00 0.00 0.00 0.00
24 No 0.00 0.00 0.00 0.00 0.00
25 700,000.0 0.00 4,438.00 0.00 3,989,695.00 274,454.17
25.01
25.02
25.03
25.04
25.05
25.06
25.07
25.08
26 0.0 0.00 0.00 0.00 180,000.00 177,828.50
27 No 0.00 111,375.00 0.00 0.00 0.00
27.01
27.02
27.03
28 No 0.00 0.00 0.00 0.00 480,101.72
29 No 0.00 53,375.00 0.00 44,118.00 749,585.00
30 No 0.00 0.00 0.00 2,500.00 0.00
31 0.0 144,937.50 0.00 50,000.00 28,043.00 443,814.00
31.01
31.02
31.03
31.04
31.05
31.06
31.07
31.08
31.09
31.10
31.11
31.12
31.13
31.14
32 No 0.00 9,625.00 0.00 0.00 0.00
33 No 0.00 0.00 0.00 0.00 0.00
34 No 0.00 0.00 0.00 0.00 0.00
34.01
34.02
34.03
34.04
34.05
34.06
34.07
34.08
34.09
34.10
34.11
34.12
34.13
34.14
34.15
34.16
34.17
34.18
34.19
34.20
34.21
34.22
35 16,326,273.0 0.00 0.00 0.00 0.00 0.00
36 No 0.00 0.00 0.00 4,073,638.10 74,215.26
37 No 0.00 0.00 0.00 723,320.00 21,975.98
38 0.0 0.00 81,250.00 0.00 0.00 119,860.00
38.01
38.02
38.03
38.04
38.05
39 No 0.00 120,000.00 0.00 2,000,000.00 746,866.59
40 No 0.00 0.00 0.00 0.00 0.00
41 7,184,000.0 59,576.00 0.00 0.00 0.00 0.00
No 0.00 126,339.00 28,000.00 0.00 505,954.98
42 No 0.00 60,019.00 1,875.00 0.00 274,002.14
43 No 0.00 38,219.00 0.00 0.00 64,371.69
44 No 0.00 1,250.00 0.00 0.00 98,113.43
45 No 0.00 21,038.00 0.00 0.00 27,908.82
46 No 0.00 5,813.00 26,125.00 0.00 41,558.90
47 No 0.00 0.00 0.00 0.00 0.00
48 4,500,000.0 0.00 0.00 0.00 0.00 0.00
49 0.0 96,875.00 0.00 0.00 0.00 0.00
50 0.0 400,000.00 400,000.00 0.00 0.00 0.00
51 0.0 0.00 400,000.00 0.00 0.00 0.00
52 No 0.00 7,375.00 0.00 0.00 41,842.33
53 0.0 550,000.00 0.00 0.00 0.00 0.00
54 0.0 0.00 0.00 0.00 0.00 0.00
55 No 0.00 9,000.00 0.00 0.00 499,182.62
55.01
55.02
55.03
55.04
56 0.0 0.00 0.00 0.00 0.00 0.00
57 No 50,000.00 0.00 0.00 210,000.00 61,350.67
58 No 0.00 83,750.00 34,875.00 0.00 76,116.45
59 No 38,750.00 0.00 0.00 0.00 50,262.01
60 No 0.00 0.00 0.00 0.00 271,648.52
61 No 0.00 100,625.00 0.00 0.00 117,022.87
62 No 207,295.00 142,450.00 0.00 0.00 413,198.28
63 No 303,000.00 0.00 0.00 0.00 0.00
64 No 0.00 0.00 0.00 0.00 583,000.00
65 No 0.00 8,675.00 0.00 0.00 95,565.00
66 No 110,000.00 25,963.00 0.00 455,000.00 305,823.75
66.01
66.02
66.03
67 0.0 253,225.00 0.00 0.00 0.00 0.00
67.01
67.02
67.03
67.04
68 No 463,000.00 42,450.00 0.00 0.00 177,426.67
69 0.0 0.00 0.00 125,000.00 0.00 0.00
70 No 9,687.50 4,750.00 0.00 0.00 136,721.75
70.01
70.02
70.03
71 No 0.00 0.00 0.00 794,827.00 125,412.50
72 No 0.00 0.00 0.00 0.00 59,292.60
73 260,000 1,245.00 2,500.00 0.00 0.00 0.00
74 0.0 0.00 0.00 0.00 0.00 0.00
75 No 0.00 3,750.00 0.00 0.00 27,936.02
76 No 0.00 0.00 0.00 0.00 37,045.76
77 0.0 0.00 83,125.00 0.00 159,854.00 66,137.00
77.01
77.02
77.03
78 0.0 0.00 0.00 0.00 0.00 0.00
79 No 0.00 0.00 0.00 0.00 58,658.00
80 0.0 2,500.00 0.00 106,875.00 200,000.00 74,616.00
81 No 0.00 0.00 0.00 380,710.00 18,897.17
82 No 0.00 0.00 0.00 0.00 12,504.17
83 0.0 0.00 0.00 0.00 0.00 206,959.00
84 0.0 0.00 0.00 0.00 0.00 0.00
85 No 7,500.00 0.00 0.00 0.00 55,771.42
85.01
85.02
86 No 0.00 305,063.00 0.00 0.00 57,815.48
87 0.0 0.00 99,500.00 25,000.00 100,000.00 46,567.52
88 No 0.00 0.00 0.00 0.00 0.00
89 No 0.00 0.00 0.00 0.00 0.00
90 No 0.00 0.00 0.00 0.00 0.00
91 0.0 0.00 0.00 0.00 0.00 0.00
92 No 0.00 0.00 0.00 0.00 8,822.91
93 No 436.00 0.00 0.00 436.00 17,983.26
94 No 0.00 3,750.00 0.00 0.00 36,535.20
95 0.0 245,000.00 0.00 0.00 0.00 0.00
96 No 0.00 0.00 0.00 0.00 21,565.82
97 No 0.00 0.00 0.00 0.00 4,783.00
98 No 0.00 0.00 0.00 0.00 72,652.68
98.01
98.02
98.03
99 No 0.00 6,144.00 0.00 0.00 37,640.40
100 No 0.00 0.00 0.00 150,000.00 54,671.95
the borrower will deposit 6
101 0.0 22,813.00 42,675.00 0.00 460,000.00 months of taxes at closing.
102 0.0 0.00 0.00 625.00 0.00 3,135.00
103 No 0.00 0.00 0.00 0.00 3,575.07
104 No 0.00 0.00 0.00 0.00 41,892.93
105 0.0 0.00 0.00 51,625.00 0.00 21,746.00
106 0.0 0.00 0.00 0.00 0.00 0.00
107 1,100,000.0 18,750.00 0.00 1,000.00 0.00 0.00
108 0.0 0.00 625.00 0.00 0.00 0.00
109 No 0.00 0.00 0.00 0.00 18,282.26
110 No 377.00 0.00 0.00 617,133.00 34,256.00
111 No 0.00 0.00 0.00 0.00 0.00
112 0.0 0.00 0.00 0.00 0.00 0.00
113 0.0 0.00 7,500.00 0.00 200,000.00 15,561.00
114 0.0 0.00 0.00 0.00 0.00 0.00
115 No 0.00 0.00 0.00 0.00 5,283.67
116 No 0.00 0.00 0.00 0.00 151,150.54
116.01
116.02
117 No 31,229.00 0.00 0.00 0.00 0.00
118 No 0.00 5,000.00 0.00 0.00 11,136.00
119 0.0 0.00 0.00 0.00 74,541.00 111,553.17
120 No 1,203.31 3,750.00 0.00 4,011.04 23,092.63
121 No 0.00 0.00 0.00 0.00 6,381.00
122 0.0 0.00 0.00 1,250.00 150,000.00 23,691.71
123 No 0.00 15,156.00 1,000.00 0.00 77,398.53
124 No 0.00 0.00 0.00 0.00 29,601.98
125 No 0.00 0.00 0.00 0.00 0.00
126 No 0.00 371,843.00 0.00 0.00 0.00
127 No 0.00 0.00 0.00 0.00 49,207.51
128 No 0.00 0.00 0.00 0.00 0.00
129 0.0 0.00 0.00 2,000.00 0.00 0.00
130 0.0 0.00 0.00 0.00 36,500.00 0.00
131 No 3,750.00 0.00 0.00 31,015.00 19,214.42
132 No 0.00 6,694.00 0.00 0.00 17,229.04
133 No 0.00 0.00 0.00 200,000.00 0.00
134 0.0 500,000.00 0.00 0.00 0.00 0.00
135 0.0 0.00 0.00 36,000.00 0.00
136 No 0.00 0.00 9,600.00 0.00 59,215.29
137 No 7,350.01 0.00 0.00 0.00 120,776.00
138 0.0 0.00 23,422.00 0.00 15,000.00 3,872.10
139 No 0.00 900,000.00 0.00 150,000.00 108,891.93
140 No 0.00 10,000.00 0.00 0.00 7,366.22
141 No 0.00 0.00 0.00 0.00 24,455.87
142 0.0 0.00 0.00 0.00 0.00 0.00
143 0.0 0.00 138,125.00 39,000.00 4,336.00 4,021.00
144 No 0.00 0.00 0.00 0.00 63,740.01
145 0.0 0.00 0.00 0.00 0.00 0.00
146 No 255.00 0.00 0.00 31,778.00 8,345.00
147 0.0 0.00 0.00 0.00 0.00 0.00
148 0.0 0.00 0.00 0.00 32,967.00 0.00
149 No 0.00 0.00 0.00 0.00 20,229.00
150 No 0.00 0.00 0.00 0.00 57,027.02
151 0.0 267,313.00 0.00 0.00 0.00 0.00
152 No 0.00 0.00 0.00 0.00 2,388.17
153 0.0 0.00 0.00 0.00 0.00 10,294.00
154 No 0.00 3,750.00 0.00 0.00 4,808.32
155 No 0.00 11,850.00 0.00 5,000.00 35,238.61
156 No 0.00 18,750.00 0.00 0.00 6,998.02
157 No 0.00 0.00 0.00 0.00 0.00
158 0.0 0.00 0.00 0.00 0.00 0.00
159 No 0.00 2,250.00 0.00 0.00 17,522.13
160 0.0 0.00 0.00 0.00 0.00 0.00
161 No 0.00 4,000.00 0.00 5,806.00 0.00
162 0.0 0.00 0.00 0.00 0.00 0.00
163 No 0.00 3,750.00 0.00 0.00 3,483.93
164 No 0.00 0.00 0.00 0.00 77,543.78
165 0.0 0.00 625.00 0.00 0.00 1,112.92
166 0.0 0.00 0.00 0.00 100,000.00 3,452.00
167 0.0 0.00 0.00 0.00 0.00 0.00
168 No 0.00 0.00 0.00 50,000.00 64,536.86
169 0.0 0.00 0.00 13,500.00 0.00 0.00
170 No 0.00 6,250.00 0.00 0.00 15,218.29
171 No 0.00 0.00 0.00 0.00 4,146.94
172 0.0 0.00 0.00 0.00 0.00 0.00
173 No 158.00 0.00 0.00 123,060.00 17,502.00
174 0.0 0.00 0.00 0.00 0.00 0.00
175 No 0.00 0.00 0.00 0.00 6,348.33
176 No 0.00 0.00 0.00 0.00 0.00
177 0.0 0.00 0.00 0.00 100,000.00 49,329.00
178 No 0.00 0.00 0.00 0.00 3,773.08
179 No 0.00 0.00 0.00 0.00 0.00
180 0.0 0.00 0.00 0.00 0.00 59,389.42
181 0.0 0.00 0.00 0.00 0.00 0.00
182 No 0.00 3,750.00 0.00 0.00 4,562.14
183 No 0.00 0.00 0.00 0.00 22,400.00
184 0.0 0.00 0.00 6,250.00 0.00 28,717.00
185 No 0.00 0.00 0.00 0.00 0.00
186 No 0.00 0.00 0.00 0.00 2,130.55
187 0.0 0.00 0.00 0.00 0.00 0.00
188 No 0.00 0.00 0.00 0.00 3,157.90
189 No 0.00 0.00 0.00 0.00 0.00
190 No 0.00 0.00 0.00 0.00 11,824.76
191 No 0.00 750.00 0.00 0.00 0.00
192 No 0.00 0.00 0.00 0.00 3,646.89
193 No 0.00 300.00 0.00 0.00 1,209.34
194 No 0.00 0.00 0.00 0.00 3,608.73
195 No 0.00 300.00 0.00 0.00 883.33
HGTSCL No 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
UPFRONT ESCROW MONTHLY ESCROW
---------------------------- -------------------------------------------------------------------------------------------
Upfront Ins. Upfront Other Monthly Capex Monthly Envir. Monthly TI/LC Monthly RE
Loan # Reserve Reserve Reserve Reserve Reserve Tax Reserve
------------------------------------------------------------------------------------------------------------------------------------
1 98,538.00 33,964.00 0.00 0.00 0.00 557495.43
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
2 0.00 0.00 0.00 0.00 0.00 0.00
3 0.00 0.00 17732.50 0.00 150000.00 189143.00
3.01
3.02
3.03
3.04
3.05
3.06
3.07
4 135,177.13 0.00 10416.67 0.00 70833.33 618675.42
5 0.00 0.00 0.00 0.00 0.00 0.00
6 144,703.00 0.00 13486.16 0.00 0.00 211797.58
7 0.00 0.00 21348.55 0.00 0.00 0.00
7.01
7.02
7.03
7.04
7.05
7.06
7.07
7.08
7.09
7.10
7.11
7.12
7.13
7.14
7.15
7.16
7.17
7.18
7.19
7.20
7.21
7.22
7.23
7.24
7.25
7.26
7.27
7.28
7.29
7.30
156,767.44 0.00 35833.34 0.00 0.00 136240.84
8 32,422.69 0.00 5833.33 0.00 0.00 21334.11
9 25,428.38 0.00 5625.00 0.00 0.00 20127.33
10 24,389.31 0.00 5833.33 0.00 0.00 19788.13
11 21,579.25 0.00 5625.00 0.00 0.00 33721.31
12 17,143.88 0.00 4229.17 0.00 0.00 12836.82
13 16,835.88 0.00 4229.17 0.00 0.00 13467.01
14 10,563.88 0.00 2541.67 0.00 0.00 8674.97
15 8,404.17 0.00 1916.67 0.00 0.00 6291.16
0.00 0.00 0.00 0.00 0.00 0.00
16 0.00 0.00 0.00 0.00 0.00 0.00
17 0.00 0.00 0.00 0.00 0.00 0.00
18 0.00 0.00 0.00 0.00 0.00 0.00
19 0.00 0.00 0.00 0.00 0.00 0.00
20 0.00 0.00 0.00 0.00 0.00 0.00
21 0.00 0.00 0.00 0.00 0.00 0.00
22 0.00 0.00 0.00 0.00 0.00 0.00
23 0.00 0.00 0.00 0.00 0.00 0.00
24 0.00 0.00 8773.75 0.00 0.00 0.00
25 142,200.00 0.00 15,007.00 0.00 93794.00 137227.00
25.01
25.02
25.03
25.04
25.05
25.06
25.07
25.08
26 81,519.00 287,750.00 11557.80 0.00 26000.00 67000.00
27 0.00 0.00 0.00 0.00 0.00 0.00
27.01
27.02
27.03
28 76,551.95 0.00 6411.03 0.00 34722.25 240050.86
29 20,290.00 605,900.00 6433.00 0.00 44118.00 149917.00
30 0.00 0.00 5929.00 0.00 0.00 0.00
31 147,843.00 0.00 15847.00 0.00 27000.00 52151.00
31.01
31.02
31.03
31.04
31.05
31.06
31.07
31.08
31.09
31.10
31.11
31.12
31.13
31.14
32 40,175.57 1,100,000.00 5305.00 0.00 0.00 163412.20
33 0.00 0.00 0.00 0.00 0.00 0.00
34 0.00 0.00 0.00 0.00 0.00 0.00
34.01
34.02
34.03
34.04
34.05
34.06
34.07
34.08
34.09
34.10
34.11
34.12
34.13
34.14
34.15
34.16
34.17
34.18
34.19
34.20
34.21
34.22
35 0.00 0.00 0.00 0.00 0.00 0.00
36 43,727.95 1,771,545.34 2666.67 0.00 0.00 37107.63
37 5,512.08 0.00 4694.92 0.00 11738.00 21975.98
38 52,759.71 50,000.00 51053.00 0.00 0.00 39922.00
38.01
38.02
38.03
38.04
38.05
39 117,595.80 273,520.00 4760.00 0.00 0.00 106695.23
40 0.00 0.00 0.00 0.00 0.00 0.00
41 0.00 61,000.00 4812.17 0.00 12500.00 83165.50
54,450.91 0.00 31792.83 0.00 0.00 78278.29
42 32,254.43 0.00 19208.33 0.00 0.00 45667.02
43 8,214.15 0.00 4500.00 0.00 0.00 10728.62
44 5,985.00 0.00 3396.00 0.00 0.00 8919.40
45 3,795.75 0.00 2000.00 0.00 0.00 4651.47
46 4,201.58 0.00 2688.50 0.00 0.00 8311.78
47 0.00 0.00 0.00 0.00 0.00 0.00
48 0.00 109,395.98 2958.42 0.00 12500.00 38937.50
49 0.00 0.00 1586.83 0.00 6250.00 13085.06
50 0.00 1,000,000.00 6875.00 0.00 0.00 54307.50
51 0.00 1,000,000.00 8250.00 0.00 0.00 54841.67
52 32,791.13 0.00 5500.00 0.00 0.00 20921.17
53 0.00 0.00 0.00 0.00 0.00 25575.00
54 0.00 0.00 7166.67 45211.15
1/12th of annual
55 37,276.55 130,000.00 0.00 0.00 0.00 payable tax
55.01
55.02
55.03
55.04
56 0.00 0.00 6666.66 0.00 0.00 57078.58
57 9,504.50 0.00 0.00 0.00 0.00 12270.13
58 74,542.00 0.00 0.00 0.00 0.00 38058.22
59 20,901.83 0.00 1642.83 0.00 12500.00 16754.00
60 0.00 0.00 0.00 0.00 8333.33 45274.75
61 16,571.75 0.00 4893.47 0.00 0.00 39007.62
62 49,213.98 0.00 8666.67 0.00 0.00 45910.92
63 0.00 0.00 0.00 0.00 0.00 0.00
64 56,906.70 0.00 6730.36 0.00 0.00 48583.33
65 56,443.25 0.00 982.00 0.00 5610.00 31855.00
66 0.00 1,195,395.00 2916.67 0.00 0.00 25485.31
66.01
66.02
66.03
67 0.00 0.00 10583.33 0.00 0.00 0.00
67.01
67.02
67.03
67.04
68 2,733.33 0.00 0.00 0.00 0.00 22178.33
69 0.00 627,900.00 1850.00 0.00 12500.00 0.00
70 46,800.00 0.00 9687.50 0.00 0.00 12429.25
70.01
70.02
70.03
71 35,910.02 0.00 500.00 0.00 0.00 25082.50
72 14,058.67 0.00 1365.00 0.00 5455.00 11858.52
73 1,650.00 0.00 1245.00 0.00 0.00 0.00
74 0.00 0.00 0.00 0.00 0.00 2158.33
75 23,698.03 168,437.50 2542.00 0.00 0.00 6984.00
76 0.00 0.00 1043.55 0.00 0.00 9261.44
77 31,408.00 2,000,000.00 3583.00 0.00 0.00 9448.00
77.01
77.02
77.03
78 3,717.01 0.00 3200.00 0.00 0.00 15225.00
79 0.00 0.00 440.28 0.00 0.00 19552.67
Monthly Deposits of
$5,770.33 if balance
80 7,738.69 0.00 1611.50 0.00 falls below $100,000 15000.00
81 0.00 0.00 14872.20 0.00 0.00 9433.00
82 1,065.00 347,193.76 1292.67 0.00 0.00 2500.83
83 43,516.00 0.00 1753.00 0.00 7500.00 20696.00
84 0.00 0.00 11467.36 0.00 0.00 1205.42
85 24,413.25 820,801.14 6104.78 0.00 0.00 13942.86
85.01
85.02
86 0.00 0.00 4833.33 0.00 0.00 11563.10
87 10,708.00 0.00 1153.85 0.00 4166.67 15523.00
88 0.00 0.00 0.00 0.00 0.00 0.00
89 0.00 1,633,684.73 0.00 0.00 0.00 0.00
90 0.00 0.00 0.00 0.00 0.00 0.00
91 0.00 10,000.00 1992.50 0.00 4166.67 17929.17
92 2,969.67 0.00 0.00 0.00 2800.00 8822.91
93 0.00 134,183.00 436.00 0.00 436.00 5994.42
94 6,666.67 0.00 0.00 0.00 0.00 12178.40
95 0.00 0.00 835.25 0.00 2000.00 7636.12
96 14,222.50 80,000.00 761.84 0.00 3047.00 7188.61
97 42,006.18 0.00 4500.00 0.00 0.00 4783.00
98 5,791.17 100,000.00 1148.49 0.00 4600.00 7265.27
98.01
98.02
98.03
99 16,213.98 0.00 2330.00 0.00 0.00 7528.08
100 6,245.00 92,000.00 2164.42 0.00 8333.33 9111.99
101 0.00 0.00 1895.83 0.00 0.00 0.00
102 8,171.00 0.00 934.25 0.00 3628.92 3100.00
103 0.00 0.00 800.69 0.00 0.00 3575.07
104 3,957.25 0.00 526.33 0.00 3166.67 10473.23
105 10,214.00 4,687.50 3181.67 0.00 0.00 10873.00
106 0.00 0.00 0.00 0.00 0.00 0.00
107 0.00 0.00 4250.00 0.00 0.00 13416.67
108 6,716.33 0.00 6333.33 0.00 0.00 3542.79
109 4,780.00 45,190.00 461.81 0.00 0.00 9141.13
110 2,622.00 459,689.12 377.00 0.00 2515.00 17128.00
111 0.00 0.00 0.00 0.00 0.00 0.00
112 0.00 0.00 1333.92 0.00 4166.67 15007.50
113 1,307.00 0.00 1647.00 0.00 0.00 1729.00
114 0.00 0.00 3500.00 0.00 0.00 191.67
115 1,381.25 0.00 0.00 0.00 0.00 2641.83
116 0.00 0.00 0.00 0.00 0.00 12595.88
116.01
116.02
117 8,529.50 125,000.00 724.08 0.00 2201.21 12364.97
118 8,208.00 0.00 148.00 0.00 1667.00 2784.00
119 4,391.00 0.00 1152.25 0.00 7500.00 15936.17
120 3,280.00 222,016.67 1203.31 0.00 4011.04 23092.63
121 529.43 0.00 0.00 0.00 0.00 6381.00
Borrower shall be required to make
monthly deposits of $7,500 into
rollover reserve during any period
in which the reserve balance is
122 0.00 72,033.00 1122.00 0.00 less than $150,000 7898.00
123 29,307.30 0.00 7416.67 0.00 0.00 8599.84
124 6,599.85 148,000.00 801.73 0.00 0.00 14801.00
125 0.00 0.00 0.00 0.00 0.00 0.00
126 0.00 0.00 1482.00 0.00 856.00 4738.00
127 14,695.50 0.00 0.00 0.00 0.00 8201.25
128 0.00 0.00 0.00 0.00 0.00 0.00
129 0.00 0.00 2979.17 0.00 0.00 0.00
130 0.00 0.00 1116.08 0.00 0.00 15645.83
131 7,176.00 16,405.00 905.24 0.00 9636.77 19214.42
132 20,141.00 0.00 3600.00 0.00 2000.00 5743.01
133 8,712.00 49,962.00 470.00 0.00 4705.00 3672.00
134 0.00 0.00 5545.29 0.00 0.00 11052.50
135 0.00 404,000.00 971.92 0.00 833.33 5562.09
136 8,792.50 0.00 0.00 0.00 0.00 9869.22
137 11,095.00 0.00 349.42 0.00 0.00 10064.67
138 5,930.00 428,000.00 339.01 0.00 1400.00 3872.00
139 9,182.39 0.00 2286.00 0.00 4572.00 12099.10
140 7,675.46 106,812.50 687.50 0.00 0.00 1841.56
141 14,756.00 0.00 2125.00 0.00 0.00 4075.98
142 0.00 0.00 3582.76 0.00 0.00 6958.41
143 2,240.00 0.00 670.00 0.00 0.00 4021.00
144 7,495.41 0.00 0.00 0.00 0.00 8181.04
145 0.00 0.00 3931.25 0.00 0.00 14254.61
146 2,402.00 16,407.07 255.00 0.00 2543.00 8345.00
147 0.00 0.00 500.00 0.00 3250.00
148 0.00 0.00 1055.83 0.00 1333.33 2827.90
149 4,257.00 0.00 229.50 0.00 1721.34 3371.50
150 12,615.53 0.00 0.00 0.00 4000.00 4752.02
151 0.00 0.00 1763.75 0.00 2083.33 11000.00
152 3,748.00 0.00 165.42 0.00 2000.00 23387.17
153 8,406.00 0.00 631.00 0.00 0.00 2191.47
154 1,011.42 0.00 900.00 0.00 0.00 4808.32
155 791.67 51,808.75 999.18 0.00 5000.00 7047.72
156 26,209.99 0.00 6000.00 0.00 0.00 6998.02
157 0.00 0.00 0.00 0.00 0.00 0.00
158 0.00 0.00 2498.17 0.00 0.00 6350.00
159 8,316.58 0.00 2833.00 0.00 0.00 2503.16
160 0.00 0.00 442.42 0.00 1500.00 6038.93
161 10,926.00 0.00 681.00 0.00 4006.00 8850.00
162 0.00 0.00 2332.96 0.00 0.00 10092.00
163 4,295.76 7,562.50 375.00 0.00 0.00 870.98
164 5,406.44 0.00 9416.55 0.00 0.00 7754.38
165 20,000.00 0.00 2083.33 0.00 0.00 371.00
166 0.00 200,000.00 460.00 0.00 3000.00 1950.00
167 0.00 0.00 1385.42 0.00 416.67 4345.83
168 7,513.33 0.00 0.00 0.00 2027.00 5866.99
169 0.00 0.00 1562.50 0.00 0.00 0.00
170 6,286.17 1,250.00 2085.00 0.00 0.00 2174.04
171 4,667.72 10,712.50 458.33 0.00 0.00 1036.73
172 0.00 0.00 1000.00 0.00 0.00 3698.84
173 2,424.00 0.00 158.00 0.00 0.00 2917.00
174 0.00 0.00 1741.00 0.00 0.00 6000.00
175 906.30 0.00 0.00 0.00 0.00 3174.17
176 0.00 0.00 139.75 0.00 0.00 0.00
177 19,123.00 0.00 916.76 0.00 2610.85 11233.02
178 513.92 0.00 0.00 0.00 0.00 3773.08
179 0.00 0.00 0.00 0.00 0.00 0.00
180 3,972.00 0.00 0.00 0.00 0.00 4949.00
181 0.00 0.00 309.08 0.00 0.00 3762.50
182 3,417.55 8,887.50 375.00 0.00 0.00 1140.53
183 4,860.00 18,000.00 186.67 0.00 1400.00 3733.33
184 2,271.00 0.00 280.00 0.00 0.00 4786.17
185 0.00 0.00 0.00 0.00 0.00 0.00
186 3,246.67 70,000.00 171.67 0.00 686.67 2130.55
187 571.00 0.00 291.67 0.00 0.00 3360.00
188 1,006.84 0.00 87.50 0.00 0.00 631.58
189 3,816.00 0.00 106.00 0.00 1057.00 4609.00
190 5,167.50 20,000.00 1395.84 0.00 0.00 1970.79
191 0.00 0.00 0.00 0.00 0.00 0.00
192 2,310.33 0.00 0.00 0.00 0.00 1824.00
193 1,679.33 0.00 67.00 0.00 500.00 1209.34
194 1,833.00 0.00 0.00 0.00 0.00 1804.37
195 1,804.67 0.00 83.00 0.00 625.00 883.33
HGTSCL 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
MONTHLY ESCROW
-------------------------------
Monthly Monthly Interest
Ins. Other Grace Lockbox Defeasance Accrual
Loan # Reserve Reserve Period In-place Property Type Permitted Period
-----------------------------------------------------------------------------------------------------------------------------------
1 49269.00 33964.00 0 Yes Office Yes Actual/360
1.01 Office
1.02 Office
1.03 Office
1.04 Office
1.05 Office
1.06 Office
1.07 Office
1.08 Office
1.09 Office
1.10 Office
1.11 Office
1.12 Office
1.13 Office
1.14 Office
1.15 Office
1.16 Office
1.17 Office
1.18 Office
1.19 Office
1.20 Office
1.21 Office
2 0.00 0.00 10 Yes Retail Yes Actual/360
3 0.00 0.00 5 Yes Office Yes Actual/360
3.01 Office
3.02 Office
3.03 Office
3.04 Office
3.05 Office
3.06 Office
3.07 Office
4 22303.38 0.00 0 Yes Office Yes Actual/360
5 0.00 0.00 5 No Retail Yes Actual/360
6 40000.00 0.00 0 Yes Multifamily Yes 30/360
7 0.00 0.00 7 Yes Office Yes Actual/360
7.01 Office
7.02 Office
7.03 Office
7.04 Office
7.05 Office
7.06 Office
7.07 Office
7.08 Office
7.09 Office
7.10 Office
7.11 Office
7.12 Office
7.13 Office
7.14 Office
7.15 Office
7.16 Office
7.17 Office
7.18 Office
7.19 Office
7.20 Office
7.21 Office
7.22 Office
7.23 Office
7.24 Office
7.25 Office
7.26 Office
7.27 Office
7.28 Office
7.29 Office
7.30 Office
31353.50 0.00 0 Yes Multifamily Yes Actual/360
8 6484.54 0.00 0 Yes Multifamily Yes Actual/360
9 5085.68 0.00 0 Yes Multifamily Yes Actual/360
10 4877.86 0.00 0 Yes Multifamily Yes Actual/360
11 4315.85 0.00 0 Yes Multifamily Yes Actual/360
12 3428.78 0.00 0 Yes Multifamily Yes Actual/360
13 3367.18 0.00 0 Yes Multifamily Yes Actual/360
14 2112.78 0.00 0 Yes Multifamily Yes Actual/360
15 1680.83 0.00 0 Yes Multifamily Yes Actual/360
0.00 0.00 0 Yes Various Yes Actual/360
16 0.00 0.00 0 Yes Industrial Yes Actual/360
17 0.00 0.00 0 Yes Multifamily Yes Actual/360
18 0.00 0.00 0 Yes Office Yes Actual/360
19 0.00 0.00 0 Yes Multifamily Yes Actual/360
20 0.00 0.00 0 Yes Office Yes Actual/360
21 0.00 0.00 0 Yes Multifamily Yes Actual/360
22 0.00 0.00 0 Yes Industrial Yes Actual/360
23 0.00 0.00 0 Yes Industrial Yes Actual/360
24 0.00 0.00 0 Yes Office Yes Actual/360
25 17775.00 0.00 5 Yes Various Yes Actual/360
25.01 Office
25.02 Office
25.03 Office
25.04 Office
25.05 Industrial
25.06 Industrial
25.07 Office
25.08 Office
26 19000.00 0.00 0 Yes Retail Yes Actual/360
27 0.00 0.00 0 Yes Senior Housing Yes Actual/360
27.01 Senior Housing
27.02 Senior Housing
27.03 Senior Housing
28 8505.77 0.00 6 Yes Office Yes Actual/360
29 10145.00 0.00 0 Yes Office Yes Actual/360
30 0.00 0.00 10 Yes Office Yes Actual/360
31 4107.00 0.00 0 Yes Industrial Yes Actual/360
31.01 Industrial
31.02 Industrial
31.03 Industrial
31.04 Industrial
31.05 Industrial
31.06 Industrial
31.07 Industrial
31.08 Industrial
31.09 Industrial
31.10 Industrial
31.11 Industrial
31.12 Industrial
31.13 Industrial
31.14 Industrial
32 11373.43 0.00 0 No Office Yes Actual/360
33 0.00 0.00 0 No Office Yes Actual/360
34 0.00 0.00 0 No Retail No 30/360
34.01 Retail
34.02 Retail
34.03 Retail
34.04 Retail
34.05 Retail
34.06 Retail
34.07 Retail
34.08 Retail
34.09 Retail
34.10 Retail
34.11 Retail
34.12 Retail
34.13 Retail
34.14 Retail
34.15 Retail
34.16 Retail
34.17 Retail
34.18 Retail
34.19 Retail
34.20 Retail
34.21 Retail
34.22 Retail
35 0.00 0.00 0 No Retail No 30/360
36 7287.99 0.00 0 Yes Office Yes Actual/360
37 5512.08 0.00 0 Yes Office Yes Actual/360
38 0.00 0.00 0 Yes Hotel Yes Actual/360
38.01 Hotel
38.02 Hotel
38.03 Hotel
38.04 Hotel
38.05 Hotel
39 8088.60 0.00 0 Yes Office Yes Actual/360
40 0.00 0.00 0 No Retail No 30/360
41 0.00 0.00 5 Yes Office Yes Actual/360
9075.16 0.00 0 Yes Multifamily Yes Actual/360
42 5375.74 0.00 0 Yes Multifamily Yes Actual/360
43 1369.03 0.00 0 Yes Multifamily Yes Actual/360
44 997.50 0.00 0 Yes Multifamily Yes Actual/360
45 632.63 0.00 0 Yes Multifamily Yes Actual/360
46 700.26 0.00 0 Yes Multifamily Yes Actual/360
47 0.00 0.00 10 No Office Yes Actual/360
48 0.00 0.00 5 Yes Office Yes Actual/360
49 3729.08 0.00 5 Retail Yes Actual/360
50 6959.33 0.00 5 Multifamily Yes Actual/360
51 8268.08 0.00 5 Multifamily No Actual/360
52 6558.23 0.00 0 Yes Multifamily Yes Actual/360
53 6475.00 0.00 5 Multifamily No Actual/360
54 11726.28 0.00 5 Multifamily Yes Actual/360
4% of gross
55 5325.22 monthly revenue 0 No Hotel Yes Actual/360
55.01 Hotel
55.02 Hotel
55.03 Hotel
55.04 Hotel
56 10149.45 0.00 5 Multifamily Yes Actual/360
57 3168.17 0.00 7 Yes Retail No Actual/360
58 6212.00 0.00 0 No Office Yes Actual/360
59 1900.17 0.00 7 No Office Yes Actual/360
60 0.00 0.00 7 Yes Office Yes Actual/360
61 5523.92 0.00 10 No Multifamily Yes Actual/360
62 8202.33 0.00 0 No Multifamily Yes Actual/360
63 0.00 0.00 7 No Senior Housing Yes Actual/360
64 5690.67 0.00 7 No Multifamily Yes Actual/360
65 3786.25 0.00 0 No Retail No Actual/360
66 0.00 0.00 0 No Retail Yes Actual/360
66.01 Retail
66.02 Retail
66.03 Retail
67 8466.67 0.00 5 Multifamily Yes Actual/360
67.01 Multifamily
67.02 Multifamily
67.03 Multifamily
67.04 Multifamily
68 2733.33 0.00 0 Yes Multifamily Yes Actual/360
69 0.00 0.00 5 Yes Office No Actual/360
70 5500.00 0.00 0 Yes Multifamily Yes Actual/360
70.01 Multifamily
70.02 Multifamily
70.03 Multifamily
71 3591.00 0.00 7 No Retail Yes Actual/360
72 1757.33 0.00 7 Yes Office Yes Actual/360
73 275.00 0.00 0 Yes Retail Yes Actual/360
74 3765.08 0.00 5 Multifamily No Actual/360
75 2628.36 0.00 0 No Multifamily Yes Actual/360
76 0.00 0.00 5 No Manufactured Housing Yes Actual/360
77 2998.00 0.00 0 Yes Office Yes Actual/360
77.01 Office
77.02 Office
77.03 Office
78 3717.01 0.00 5 Multifamily Yes Actual/360
79 0.00 0.00 5 No Manufactured Housing Yes Actual/360
80 1934.69 0.00 0 Yes Retail Yes Actual/360
81 0.00 0.00 0 Yes Retail Yes Actual/360
82 106.50 0.00 0 Yes Retail Yes Actual/360
83 2916.00 0.00 0 Yes Retail Yes Actual/360
84 0.00 0.00 5 Hotel Yes Actual/360
85 8137.75 0.00 7 Yes Multifamily No Actual/360
85.01 Multifamily
85.02 Multifamily
86 0.00 0.00 0 No Multifamily Yes Actual/360
87 1785.00 0.00 5 Yes Office Yes Actual/360
88 0.00 0.00 0 Yes Retail Yes Actual/360
89 0.00 0.00 10 Yes Industrial Yes Actual/360
90 0.00 0.00 10 Yes Industrial Yes Actual/360
91 1717.00 0.00 5 No Office Yes Actual/360
92 742.42 0.00 7 No Industrial Yes Actual/360
93 0.00 0.00 0 Yes Retail Yes Actual/360
94 1666.67 0.00 0 Yes Retail Yes Actual/360
95 0.00 0.00 5 Retail Yes Actual/360
96 1422.25 0.00 0 Yes Retail Yes Actual/360
97 3818.74 0.00 7 No Multifamily Yes Actual/360
98 1556.33 0.00 7 No Various Yes Actual/360
98.01 Office
98.02 Industrial
98.03 Industrial
99 2702.33 0.00 0 No Multifamily Yes Actual/360
100 1561.25 0.00 0 No Retail Yes Actual/360
101 643.75 0.00 5 Yes Retail Yes Actual/360
102 2150.00 0.00 0 No Retail Yes Actual/360
103 0.00 0.00 5 No Manufactured Housing Yes Actual/360
104 1319.08 0.00 7 No Retail Yes Actual/360
105 5107.00 0.00 0 Yes Multifamily Yes Actual/360
106 0.00 0.00 0 No Hotel Yes Actual/360
107 4645.45 0.00 5 Multifamily Yes Actual/360
108 3358.17 0.00 0 No Multifamily Yes Actual/360
109 1593.33 0.00 7 Yes Retail Yes Actual/360
110 1311.00 0.00 0 No Retail Yes Actual/360
111 0.00 0.00 7 No Office Yes Actual/360
112 681.42 0.00 5 Office Yes Actual/360
113 1307.00 0.00 0 No Retail Yes Actual/360
114 2767.41 0.00 5 Multifamily Yes Actual/360
115 1381.25 0.00 0 No Manufactured Housing Yes Actual/360
116 0.00 0.00 7 No Multifamily Yes Actual/360
116.01 Multifamily
116.02 Multifamily
117 1218.50 0.00 7 No Retail Yes Actual/360
118 684.00 0.00 0 No Retail Yes Actual/360
119 1463.67 0.00 0 No Office No Actual/360
120 1640.00 7916.67 0 No Retail Yes Actual/360
121 529.43 0.00 0 No Manufactured Housing Yes Actual/360
122 1217.48 0.00 0 Yes Office Yes Actual/360
123 3256.37 0.00 10 No Multifamily Yes Actual/360
124 990.50 0.00 0 No Office Yes Actual/360
125 0.00 0.00 0 No Retail Yes Actual/360
126 2165.00 0.00 0 Yes Retail Yes Actual/360
127 1632.83 0.00 7 No Retail Yes Actual/360
128 0.00 0.00 7 No Senior Housing Yes Actual/360
129 0.00 0.00 5 Multifamily Yes Actual/360
130 2514.58 0.00 5 No Retail Yes Actual/360
131 2392.00 0.00 10 No Office Yes Actual/360
132 5035.25 0.00 7 Yes Industrial Yes Actual/360
133 1089.00 0.00 0 No Industrial Yes Actual/360
134 6026.21 0.00 5 Hotel No Actual/360
135 1534.00 0.00 5 Retail Yes Actual/360
136 879.25 0.00 7 No Multifamily Yes Actual/360
137 1109.50 0.00 7 Yes Retail Yes Actual/360
138 494.00 0.00 0 No Retail Yes Actual/360
139 2295.60 0.00 0 No Industrial Yes Actual/360
140 859.61 0.00 0 No Multifamily Yes Actual/360
141 1229.67 0.00 0 No Multifamily Yes Actual/360
142 4258.33 0.00 5 Multifamily Yes Actual/360
143 560.00 0.00 0 No Retail Yes Actual/360
144 1499.08 0.00 0 No Office Yes Actual/360
145 1543.58 0.00 5 Multifamily Yes Actual/360
146 1,201.00 0.00 0 No Retail Yes Actual/360
147 452.17 0.00 5 Yes Office No Actual/360
148 1049.00 0.00 5 Retail Yes Actual/360
149 473.00 0.00 0 Yes Retail Yes Actual/360
150 1251.55 0.00 0 No Office Yes Actual/360
151 1168.50 0.00 5 Yes Office Yes Actual/360
152 468.50 0.00 7 No Office Yes Actual/360
153 733.48 0.00 0 No Retail Yes Actual/360
154 1011.42 0.00 0 No Multifamily Yes Actual/360
155 791.67 0.00 7 No Office Yes Actual/360
156 3276.25 0.00 0 No Multifamily Yes Actual/360
157 0.00 0.00 0 Yes Retail No 30/360
158 0.00 0.00 5 Multifamily Yes Actual/360
159 1188.08 0.00 0 No Multifamily Yes Actual/360
160 577.58 0.00 5 Office Yes Actual/360
161 1214.00 0.00 0 No Office No Actual/360
162 2333.00 0.00 5 Multifamily Yes Actual/360
163 479.87 0.00 0 No Multifamily Yes Actual/360
164 1802.15 0.00 0 No Self-Storage No Actual/360
165 1286.80 0.00 0 No Multifamily Yes Actual/360
166 575.00 0.00 0 No Office Yes Actual/360
167 1519.83 0.00 5 Retail No Actual/360
168 1502.67 0.00 0 No Retail Yes Actual/360
169 0.00 0.00 5 Multifamily Yes Actual/360
170 3143.08 0.00 0 No Multifamily Yes Actual/360
171 540.91 0.00 0 No Multifamily Yes Actual/360
172 522.83 0.00 5 Multifamily No Actual/360
173 404.00 0.00 5 No Retail No Actual/360
174 1305.87 0.00 5 Multifamily Yes Actual/360
175 906.30 0.00 0 No Manufactured Housing Yes Actual/360
176 0.00 0.00 0 Yes Retail Yes Actual/360
177 1409.33 0.00 0 Yes Retail No Actual/360
178 513.92 0.00 0 No Manufactured Housing Yes Actual/360
179 0.00 0.00 0 No Retail No 30/360
180 1324.00 0.00 0 No Retail Yes Actual/360
181 0.00 0.00 5 Yes Retail Yes Actual/360
182 376.67 0.00 0 No Multifamily Yes Actual/360
183 540.00 0.00 0 Yes Retail Yes Actual/360
184 378.53 0.00 0 No Industrial Yes Actual/360
185 0.00 0.00 0 Yes Retail Yes Actual/360
186 405.83 0.00 0 Yes Retail Yes Actual/360
187 1284.00 0.00 0 No Multifamily Yes Actual/360
188 503.42 0.00 0 Yes Retail Yes Actual/360
189 424.00 0.00 0 No Retail No Actual/360
190 861.25 0.00 0 No Multifamily No Actual/360
191 0.00 0.00 0 Yes Retail Yes Actual/360
192 288.79 0.00 0 No Manufactured Housing Yes Actual/360
193 209.92 0.00 0 Yes Retail Yes Actual/360
194 229.13 0.00 0 No Manufactured Housing Yes Actual/360
195 225.58 0.00 0 Yes Retail Yes Actual/360
HGTSCL 0.00 0.00 10 Yes Retail Yes Actual/360
-----------------------------------------------------------------------------------------------------------------------------------
Final
Loan Maturity
Loan # Group Date
-------------------------------------
1 1
1.01 1
1.02 1
1.03 1
1.04 1
1.05 1
1.06 1
1.07 1
1.08 1
1.09 1
1.10 1
1.11 1
1.12 1
1.13 1
1.14 1
1.15 1
1.16 1
1.17 1
1.18 1
1.19 1
1.20 1
1.21 1
2 1
3 1
3.01 1
3.02 1
3.03 1
3.04 1
3.05 1
3.06 1
3.07 1
4 1
5 1
6 1
7 1
7.01 1
7.02 1
7.03 1
7.04 1
7.05 1
7.06 1
7.07 1
7.08 1
7.09 1
7.10 1
7.11 1
7.12 1
7.13 1
7.14 1
7.15 1
7.16 1
7.17 1
7.18 1
7.19 1
7.20 1
7.21 1
7.22 1
7.23 1
7.24 1
7.25 1
7.26 1
7.27 1
7.28 1
7.29 1
7.30 1
2
8 2
9 2
10 2
11 2
12 2
13 2
14 2
15 2
1
16 1
17 1
18 1
19 1
20 1
21 1
22 1
23 1
24 1
25 1
25.01 1
25.02 1
25.03 1
25.04 1
25.05 1
25.06 1
25.07 1
25.08 1
26 1 NAP
27 1
27.01 1
27.02 1
27.03 1
28 1
29 1
30 1
31 1 NAP
31.01 1
31.02 1
31.03 1
31.04 1
31.05 1
31.06 1
31.07 1
31.08 1
31.09 1
31.10 1
31.11 1
31.12 1
31.13 1
31.14 1
32 1
33 1 10/11/35
34 1
34.01 1
34.02 1
34.03 1
34.04 1
34.05 1
34.06 1
34.07 1
34.08 1
34.09 1
34.10 1
34.11 1
34.12 1
34.13 1
34.14 1
34.15 1
34.16 1
34.17 1
34.18 1
34.19 1
34.20 1
34.21 1
34.22 1
35 1
36 1
37 1
38 1 NAP
38.01 1
38.02 1
38.03 1
38.04 1
38.05 1
39 1
40 1
41 1
1
42 1
43 1
44 1
45 1
46 1
47 1
48 1
49 1
50 1
51 2
52 1
53 1
54 2
55 1
55.01 1
55.02 1
55.03 1
55.04 1
56 2
57 1
58 1
59 1
60 1
61 2
62 2
63 1
64 2
65 1
66 1
66.01 1
66.02 1
66.03 1
67 2
67.01 2
67.02 2
67.03 2
67.04 2
68 2
69 1
70 2
70.01 2
70.02 2
70.03 2
71 1
72 1
73 1
74 2
75 1
76 1
77 1 NAP
77.01 1
77.02 1
77.03 1
78 1
79 1
80 1 NAP
81 1
82 1
83 1 NAP
84 1
85 2
85.01 2
85.02 2
86 1
87 1 NAP
88 1 11/11/35
89 1
90 1
91 1
92 1
93 1
94 1 09/11/25
95 1
96 1
97 1
98 1
98.01 1
98.02 1
98.03 1
99 2
100 1
101 1
102 1 NAP
103 1
104 1
105 2 NAP
106 1 NAP
107 2
108 2 NAP
109 1
110 1
111 1
112 1
113 1 NAP
114 2
115 2
116 2
116.01 2
116.02 2
117 1
118 1
119 1 NAP
120 1
121 2
122 1 NAP
123 2
124 1
125 1
126 1
127 1
128 1
129 2
130 1
131 1
132 1
133 1
134 1
135 1
136 2
137 1
138 1 NAP
139 1
140 1
141 2
142 1
143 1 NAP
144 1
145 2
146 1
147 1
148 1
149 1
150 1
151 1
152 1
153 1 NAP
154 2
155 1
156 2
157 1
158 2
159 2
160 1
161 1
162 1
163 1
164 1
165 2 NAP
166 1 NAP
167 1
168 1
169 2
170 2
171 2
172 2
173 1
174 2
175 2
176 1
177 1 NAP
178 2
179 1 11/11/30
180 1 NAP
181 1
182 1
183 1
184 1 NAP
185 1
186 1
187 2 NAP
188 1
189 1
190 2
191 1
192 2
193 1
194 2
195 1
HGTSCL 1
-------------------------------------
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP5
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5
--------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of December 1, 2005 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as Depositor, Midland Loan Services, Inc. and GMAC Commercial Mortgage
Corporation, as Master Servicers, Midland Loan Services, Inc., as Special
Servicer, and LaSalle Bank National Association, as Trustee, on behalf of the
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP5 (the "Certificates") in
connection with the transfer by _________________ (the "Seller") to the
undersigned (the "Purchaser") of $_______________ aggregate Certificate Balance
of Class ___ Certificates (the "Certificate"). Capitalized terms used and not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
1. Check one of the following:*
[_] The Purchaser is not purchasing a Class S, Class R or Class LR
Certificate and the Purchaser is an institutional "accredited
investor" (an entity meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act")) and has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the
Certificates, and the Purchaser and any accounts for which it is
acting are each able to bear the economic risk of the Purchaser's or
such account's investment. The Purchaser is acquiring the
Certificates purchased by it for its own account or for one or more
accounts (each of which is an "institutional accredited investor")
as to each of which the Purchaser exercises sole investment
discretion. The Purchaser hereby undertakes to reimburse the Trust
Fund for any costs incurred by it in connection with this transfer.
[_] The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities
Act of 1933, as amended (the "Securities Act"). The Purchaser is
aware that the transfer is being made in reliance on Rule 144A, and
the Purchaser has had the opportunity to obtain the information
required to be provided pursuant to paragraph (d)(4)(i) of Rule
144A.
-------------
* Purchaser must include one of the following two certifications.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale (i) to "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof, (ii)
(other than with respect to a Class S Certificate or a Residual Certificate) to
institutional "accredited investors" meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) of Regulation D promulgated under the Securities Act or (iii)
(other than with respect to a Class S Certificate or a Residual Certificate)
pursuant to any other exemption from the registration requirements of the
Securities Act, subject in the case of clauses (ii) and (iii) above to (w) the
receipt by the Certificate Registrar of a letter substantially in the form
hereof, (x) the receipt by the Certificate Registrar of an opinion of counsel
acceptable to the Certificate Registrar that such reoffer, resale, pledge or
transfer is in compliance with the Securities Act, (y) the receipt by the
Certificate Registrar of such other evidence acceptable to the Certificate
Registrar that such reoffer, resale, pledge or transfer is in compliance with
the Securities Act and other applicable laws and (z) a written undertaking to
reimburse the Trust for any costs incurred by it in connection with the proposed
transfer. The Purchaser understands that the Certificate (and any subsequent
Certificate) has not been registered under the Securities Act, by reason of a
specified exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in certain
exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the Securities Act or the securities laws of any State or any
other jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such registration
or qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
a Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:**
[_] The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
[_] The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be withheld
by the Trustee (or its agent) with respect to distributions to be
made on the Certificate. The Purchaser has attached hereto [(i) a
duly executed IRS Form W-8BEN (or successor form), which identifies
such Purchaser as the beneficial owner of the Certificate and states
that such Purchaser is not a U.S. Person, (ii) IRS Form W-8IMY (with
all appropriate attachments) or (iii)]*** two duly executed copies
of IRS Form W-8ECI (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state that
interest and original issue discount on the Certificate and
Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS
Form W-8IMY or]*** IRS Form W-8ECI, [as the case may be,]*** any
applicable successor IRS forms, or such other certifications as the
Certificate Registrar may reasonably request, on or before the date
that any such IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring a change in
the most recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (except to the extent provided in
applicable Treasury Regulations) or other entity created or organized in, or
under the laws of, the United States, any State thereof or the District of
Columbia, including any entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source or a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury Regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons).
-------------
** Each Purchaser must include one of the two alternative certifications.
*** Does not apply to a transfer of Class R or Class LR Certificates.
8. Please make all payments due on the Certificates:****
[_] (a) by wire transfer to the following account at a bank or entity
in New York, New York, having appropriate facilities therefor:
Bank:
---------------------------------------------------------
ABA #:
--------------------------------------------------------
Account #:
----------------------------------------------------
Attention:
----------------------------------------------------
[_] (b) by mailing a check or draft to the following address:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
9. If the Purchaser is purchasing a Class R or Class LR Certificate,
the Purchaser is not a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes), any interest in which is
owned, directly or indirectly, through one or more partnerships, trusts or other
pass-through entities by a non-U.S. Person.
Very truly yours,
-----------------------------------------
[The Purchaser]
By:
-----------------------------------
Name:
Title:
Dated:
--------------
**** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee]
(the "Transferee"), a [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which [he/she] makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is [ ].
3. That the Transferee of a X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-LDP5, Class [R] [LR] Certificate (the "Class [R] [LR] Certificate") is not
a Disqualified Organization (as defined below) or an agent thereof (including
nominee, middleman or other similar person) (an "Agent"), or an ERISA Prohibited
Holder or a Non-U.S. Person (as defined below). For these purposes, a
"Disqualified Organization" means any of (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, majority
of its board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the applicable Master Servicer
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause any of the [Upper-Tier REMIC],
[the Lower-Tier REMIC] to fail to qualify as a REMIC, or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions. For these purposes, "ERISA Prohibited
Holder" means an employee benefit plan subject to Section 406 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Code or a governmental plan (as defined in Section 3(32) of ERISA) or a
church plan (as defined in Section 3(33) of ERISA) for which no election has
been made under Section 410(d) of the Code subject to any federal, state or
local law which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code (each a "Plan") or a person acting on behalf of or investing
the assets of such a Plan. For these purposes, "Non-U.S. Person" means any
person other than a U.S. Person (within the meaning of Section 7701(a)(30) of
the Code), unless, with respect to the Transfer of a Residual Certificate, (i)
such person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the Transferor and the
Certificate Registrar with an effective Internal Revenue Service Form W-8ECI or
(ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes; provided,
that a partnership shall be considered a Non-U.S. Person (and clause (i) of this
sentence shall not apply) if any of its interests are owned, directly or
indirectly, through any partnership, trust or other pass-through entity, by any
person that is a Non-U.S. Person.
4. That the Transferee historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax liabilities
with respect to the Class [R] [LR] Certificate in excess of any cash flow
generated by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit D-2 to the Pooling and Servicing Agreement
certifying that it has no actual knowledge that such Person or entity is a
Disqualified Organization, or an Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person and that it has no reason to know that such Person or entity
does not satisfy the requirements set forth in paragraph 4 hereof.
7. That the Transferee agrees to such amendments of the Pooling and
Servicing Agreement, dated December 1, 2005, by and among X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., as Depositor, Midland Loan Services, Inc.
and GMAC Commercial Mortgage Corporation, as Master Servicers, Midland Loan
Services, Inc., as Special Servicer, and LaSalle Bank National Association, as
Trustee (the "Pooling and Servicing Agreement"), as may be required to further
effectuate the restrictions on transfer of the Class [R] [LR] Certificate to
such a Disqualified Organization, or an Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person. To the extent not defined herein, the capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
8. That, if a "tax matters person" is required to be designated with
respect to [the Upper-Tier REMIC], [the Lower-Tier REMIC], the Transferee agrees
to act as "tax matters person" and to perform the functions of "tax matters
person" of [the Upper-Tier REMIC] [the Lower-Tier REMIC] pursuant to Section
10.01(c) of the Pooling and Servicing Agreement, and, in such event, agrees to
the irrevocable designation of the Trustee as the Transferee's agent in
performing the function of "tax matters person."
9. That the Transferee has reviewed, and agrees to be bound by and
to abide by, the provisions of Section 5.02(c) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of the Class [R]
[LR] Certificate.
10. That the Transferee will not cause income from the Class [R][LR]
Certificate to be attributable to, a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of the Transferee
or any other U.S. person.
11. Check one of the following:
[_] That the present value of the anticipated tax liabilities
associated with holding the Class [R] [LR] Certificate does not exceed the sum
of:
(i) the present value of any consideration given to the Transferee
to acquire such Class [R][LR] Certificate;
(ii) the present value of the expected future distributions on such
Class [R] [LR] Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Class [R] [LR] Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[_] That the transfer of the Class [R] [LR] Certificate complies
with U.S. Treasury Regulations Sections 1.860G-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Sections 1.860E-1(c)(6)(i), as to
which income from Class [R] [LR] Certificate will only be
taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulation Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Class [R] [LR] Certificate
only to another "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of U.S. Treasury
Regulations Sections 1.860G-1(c)(4)(i), (ii) and (iii) and
1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Class [R] [LR] Certificate based on reasonable
market assumptions (including, but not limited to, borrowing
and investment rates, prepayment and loss assumptions, expense
and reinvestment assumptions, tax rates and other factors
specific to the Transferee) that it has determined in good
faith.
[_] None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its [Title of Officer] this _____ day of __________,
20__.
[NAME OF TRANSFEREE]
By:
--------------------------------------
[Name of Officer]
[Title of Officer]
By:
--------------------------------------
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Transferee.
Subscribed and sworn before me this ___ day of __________, 20__.
---------------------------------------
NOTARY PUBLIC
COUNTY OF
-----------------------------
STATE OF
------------------------------
My commission expires the ___ day of __________, 20__.
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP5
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates,
Series 2005-LDP5
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true and has no reason to
know that the requirements set forth in paragraphs 3, 4 and 10 thereof are not
satisfied or, after conducting a reasonable investigation of the financial
condition of the transferee, that the information contained in paragraphs 3, 4
and 10 thereof is not true.
Very truly yours,
[Transferor]
--------------------
EXHIBIT E
FORM OF REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5
Re: X.X. Xxxxx Commercial Mortgage Securities Corp,
Commercial Mortgage Pass-Through Certificates,
Series 2005-LDP5,
REQUEST FOR RELEASE
--------------------------------------------------------------
Dear _______________________,
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under a certain Pooling and Servicing Agreement,
dated December 1, 2005 (the "Pooling and Servicing Agreement"), by and among
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor, Midland
Loan Services, Inc. and GMAC Commercial Mortgage Corporation, as Master
Servicers, Midland Loan Services, Inc., as Special Servicer, and, you, as
Trustee, the undersigned hereby requests a release of the Mortgage File (or the
portion thereof specified below) held by or on behalf of you as Trustee with
respect to the following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______1. Mortgage Loan paid in full. The [applicable Master
Servicer] [Special Servicer] hereby certifies that all
amounts received in connection with the Mortgage Loan
have been or will be credited to the applicable
Certificate Account pursuant to the Pooling and
Servicing Agreement.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[APPLICABLE MASTER SERVICER] [SPECIAL
SERVICER]
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP5
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-LDP5
--------------------------------------------------------------
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5, Class __
(the "Certificate") issued pursuant to that certain Pooling and Servicing
Agreement, dated December 1, 2005 (the "Pooling and Servicing Agreement"), by
and among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as depositor
("Depositor"), Midland Loan Services, Inc. and GMAC Commercial Mortgage
Corporation, as master servicers ("Master Servicers"), Midland Loan Services,
Inc., as special servicer ("Special Servicer"), and LaSalle Bank National
Association, as trustee ("Trustee"). Capitalized terms used and not otherwise
defined herein have the respective meanings ascribed to such terms in the
Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
1. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) or a church plan (as defined in Section 3(33) of ERISA) for
which no election has been made under Section 410(d) of the Code, subject to any
federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such a Plan or Plans and the application of Department of Labor
Regulation ss. 2510.3-101), other than, except in the case of the Class S
Certificates, an insurance company using the assets of its "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption ("PTCE") 95-60) under circumstances whereby the
purchase and holding of Offered Private Certificates by such insurance company
would be exempt from the prohibited transaction provisions of ERISA and the Code
under Sections I and III of PTCE 95-60.
2. Except in the case of the Class S Certificates, which may not be
transferred to a Person that cannot make the representation in paragraph 1
above, the Purchaser understands that if the Purchaser is a Person referred to
in 1(a) or (b) above, such Purchaser is required to provide to the Certificate
Registrar an Opinion of Counsel in form and substance satisfactory to the
Certificate Registrar and the Depositor to the effect that the acquisition and
holding of such Certificate by such purchaser or transferee will not constitute
or result in a non-exempt "prohibited transaction" within the meaning of ERISA,
Section 4975 of the Code or any Similar Law, and will not subject the Trustee,
the Certificate Registrar, the Master Servicers, the Special Servicer, the
Dealers or the Depositor to any obligation or liability (including obligations
or liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in
addition to those set forth in the Pooling and Servicing Agreement, which
Opinion of Counsel shall not be at the expense of the Depositor, the Master
Servicers, the Special Servicer, the Dealers, the Certificate Registrar or the
Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___ day of _____________, 20__.
Very truly yours,
-----------------------------------------
[The Purchaser]
By:
-----------------------------------
Name:
Title:
EXHIBIT G
FORM OF STATEMENT TO CERTIFICATEHOLDERS
[See Annex D to the Prospectus Supplement dated December 21, 2005]
EXHIBIT H
FORM OF OMNIBUS ASSIGNMENT
[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT
ASSIGNOR] (the "Assignor") for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, hereby sells, transfers, assigns,
delivers, sets over and conveys, without recourse, representation or warranty,
express or implied, unto "LaSalle Bank National Association, as Trustee for the
registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5" (the
"Assignee"), having an office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attn: Global Securities and Trust Services Group, X.X. Xxxxxx
Commercial Mortgage Securities Corp., Series 2005-LDP5, its successors and
assigns, all right, title and interest of the Assignor in and to:
That certain mortgage and security agreement, deed of trust and
security agreement, deed to secure debt and security agreement, or similar
security instrument (the "Security Instrument"), and that certain Promissory
Note (the "Note"), for each of the Mortgage Loans shown on the Mortgage Loan
Schedule attached hereto as Exhibit B, and that certain assignment of leases and
rents given in connection therewith and all of the Assignor's right, title and
interest in any claims, collateral, insurance policies, certificates of deposit,
letters of credit, escrow accounts, performance bonds, demands, causes of action
and any other collateral arising out of and/or executed and/or delivered in or
to or with respect to the Security Instrument and the Note, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Security Instrument and the Note.
IN WITNESS WHEREOF, the Assignor has executed this instrument under
seal to be effective as of the [__] day of [_____________], 200[__].
[NAME OF CURRENT ASSIGNOR]
By:
--------------------------------------
Name:
Title:
EXHIBIT I-1
FORM OF REGULATION S TRANSFER CERTIFICATE
DURING RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP5
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-LDP5 Class [__]
--------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated December 1, 2005 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc. and GMAC Commercial
Mortgage Corporation, as Master Servicers, Midland Loan Services, Inc., as
Special Servicer, and LaSalle Bank National Association, as Trustee, on behalf
of the holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5, Class __ (the
"Certificates") in connection with the transfer by the undersigned (the
"Transferor") to _________________ (the "Transferee") of $__________________
[Certificate Balance] [Notional Amount]of Certificates, in fully registered form
(each, a "Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance] [Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a person acting for the account or
benefit of a U.S. Person, and upon completion of the transaction,
the Transferred Interest will be held with the Depository through
[Euroclear] [Clearstream];**
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicers
and the Special Servicer.
[Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated:
---------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT I-2
FORM OF REGULATION S TRANSFER CERTIFICATE
AFTER RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP5
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5
Class [__]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) the
Pooling and Servicing Agreement, dated December 1, 2005 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc. and GMAC Commercial
Mortgage Corporation, as Master Servicers, Midland Loan Services, Inc., as
Special Servicer, and LaSalle Bank National Association, as Trustee, on behalf
of the holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5, Class __ (the
"Certificates") in connection with the transfer by the undersigned (the
"Transferor") to _________________ (the "Transferee") of $__________________
[Certificate Balance][Notional Amount] of Certificates, in fully registered form
(each, a "Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance][Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicers
and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
----------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT J
FORM OF PURCHASE OPTION NOTICE
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP5
[GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Portfolio Management Group Re: X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5]
[Midland Loan Services, Inc.
00000 Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: JPMorgan 2005-LDP5]
Re: X.X. Xxxxxx Chase Commercial Mortgage Corporation Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP5
--------------------------------------------------------------------
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
from the Trust Fund, pursuant to Section 3.18 of the pooling and servicing
agreement, dated December 1, 2005 (the "Pooling and Servicing Agreement"), by
and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as depositor
("Depositor"), Midland Loan Services, Inc. and GMAC Commercial Mortgage
Corporation, as Master Servicers ("Master Servicers"), Midland Loan Services,
Inc., as special servicer ("Special Servicer"), and LaSalle Bank National
Association, as Trustee ("Trustee"). Capitalized terms used herein and not
otherwise defined shall have the meaning set forth in the Pooling and Servicing
Agreement.
The undersigned, holder of the Purchase Option (the "Option
Holder"), [is the Controlling Class Certificateholder] [acquired its Purchase
Option from the Controlling Class Certificateholder on ___________] [is the
Special Servicer] [acquired its Purchase Option from the Special Servicer].
The undersigned Option Holder is exercising its Purchase Option at
the cash price of $______________, which amount equals or exceeds the Option
Price, as defined in Section 3.18(a)(ii) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of its receipt of the applicable Master Servicer's
notice confirming that the exercise of its Purchase Option is effective, [the
undersigned Option Holder] [______________, an Affiliate of the undersigned
Option Holder] will deliver the Option Price to or at the direction of the
applicable Master Servicer in exchange for the release of the Mortgage Loan, the
related Mortgaged Property and delivery of the related Mortgage File.
The undersigned Option Holder agrees that it shall prepare and
provide the applicable Master Servicer with such instruments of transfer or
assignment, in each case without recourse, as shall be reasonably necessary to
vest in it or its designee the ownership of Mortgage Loan [__], together with
such other documents or instruments as the applicable Master Servicer shall
reasonably require to consummate the purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its
exercise of its Purchase Option Notice may not be revoked and, further, that
upon receipt of the applicable Master Servicer's notice confirming that the
exercise of its Purchase Option is effective, the undersigned Option Holder, or
its designee, shall be obligated to close its purchase of Mortgage Loan ___ in
accordance with the terms and conditions of this letter and of the Pooling and
Servicing Agreement.
Very truly yours,
[Option Holder]
By:
Name:
Title:
[By signing this letter in the space provided below, the
[Controlling Class Certificateholder] [Special Servicer] hereby acknowledges and
affirms that it transferred its Purchase Option to the Option Holder identified
above on [_________].
[_______________________]
By:
----------------------
Name:
Title:]
EXHIBIT K
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE DURING THE RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP5
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5
Class [__]
--------------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated December 1, 2005 (the "Pooling and Servicing Agreement"), by and among
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor, Midland
Loan Services, Inc. and GMAC Commercial Mortgage Corporation, as Master
Servicers, Midland Loan Services, Inc., as Special Servicer, and LaSalle Bank
National Association, as Trustee, on behalf of the holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[_______] aggregate [Certificate
Balance][Notional Amount] of Certificates (the "Certificates") which are held in
the form of the Rule 144A Book-Entry Certificate (CUSIP No. _________) with the
Depository in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest for an interest
in the Regulation S Book-Entry Certificate (CUSIP No. __________) to be held
with [Euroclear] [CEDEL]* (Common Code No.____________) through the Depositary.
---------------
* Select appropriate depository.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States],*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a Person acting for the account or
benefit of a U.S. Person,
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable,
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depository through [Euroclear] [Clearstream].**
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicers
and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
---------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT L
[RESERVED]
EXHIBIT M
[RESERVED]
EXHIBIT N
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE AFTER RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP5
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5,
Class [__]
--------------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated December 1, 2005 (the "Pooling and Servicing Agreement"), by and among
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor, Midland
Loan Services, Inc. and GMAC Commercial Mortgage Corporation, as Master
Servicers, Midland Loan Services, Inc., as Special Servicer, and LaSalle Bank
National Association, as Trustee, on behalf of the holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Rule 144A Book-Entry Certificate (CUSIP No. ________) with
the Depository in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Certificates for an interest in the Regulation S Book-Entry Certificate (Common
Code No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicers
and the Special Servicer.
[Insert Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated:
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE OF
FROM REGULATION S BOOK-ENTRY CERTIFICATE
TO RULE 144A GLOBAL BOOK-ENTRY CERTIFICATE
DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP5
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5,
Class[__]
--------------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated December 1, 2005 (the "Pooling and Servicing Agreement"), by and among
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor, Midland
Loan Services, Inc. and GMAC Commercial Mortgage Corporation, as Master
Servicers, Midland Loan Services, Inc., as Special Servicer, and LaSalle Bank
National Association, as Trustee, on behalf of the holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2005-LDP5. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Regulation S Book-Entry Certificate (CUSIP No. _______) with
[Euroclear] [Clearstream]* (Common Code No.__________) through the Depository in
the name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation 144A Book-Entry Certificate (CUSIP No.____________).
-----------------
* Select appropriate depository.
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any
jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master
Servicers, the Special Servicer and Initial Purchasers of the offering of the
Certificates.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
EXHIBIT P
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP5
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5,
Class_[__]
--------------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated December 1, 2005 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc. and GMAC Commercial
Mortgage Corporation, as Master Servicers, Midland Loan Services, Inc., as
Special Servicer, and LaSalle Bank National Association, as Trustee, on behalf
of the holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5 in connection
with the transfer by _______________ of a beneficial interest of $___________
[Certificate Balance] [Notional Amount] in a Book-Entry Certificate during the
Restricted Period to the undersigned (the "Transferee"). The Transferee desires
to beneficially own such transferred interest in the form of the Regulation S
Book-Entry Certificate. Capitalized terms used but not defined herein shall have
the meanings given to them in the Pooling and Servicing Agreement.
In connection with such transfer, the Transferee does hereby certify
that it is not a "U.S. Person" (within the meaning of Rule 902 Regulation S
under the Securities Act of 1933, as amended). This certificate and the
statements contained herein are made for your benefit and the benefit of the
Depositor, the Trustee, the applicable Master Servicer and the Special Servicer.
[Insert Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated:
EXHIBIT Q
FORM OF CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
CERTIFICATION
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2005-LDP5 (the "Trust")
I, [_____________], the President and Chief Executive Officer of
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., the depositor into the
above-referenced Trust, certify that:
1. I have reviewed this annual report on Form 10-K, and all reports on Form
8-K containing distribution or servicing reports filed in respect of
periods included in the year covered by this annual report, of the Trust;
2. Based on my knowledge, the information in these reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the trustee by the master servicers and the special
servicer under the pooling and servicing agreement for inclusion in these
reports is included in these reports;
4. Based on my knowledge and upon the annual compliance statement included in
this annual report and required to be delivered to the trustee in
accordance with the terms of the pooling and servicing agreement, and
except as disclosed in this annual report, the master servicers and the
special servicer have fulfilled their obligations under the pooling and
servicing agreement; and
5. This annual report discloses all significant deficiencies relating to the
master servicers' or special servicer's compliance with the minimum
servicing standards based upon the report provided by an independent
public accountant, after conducting a review in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or similar
procedure, as set forth in the pooling and servicing agreement, that is
included in this annual report.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: [_____].
Date:
-------------------------
By:
-----------------------------------
President and Chief Executive Officer
X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp.
EXHIBIT R
[RESERVED]
EXHIBIT S-1
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY TRUSTEE
CERTIFICATION
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2005-LDP5 (the "Trust")
I, [identify the certifying individual], a [title] of LaSalle Bank
National Association, certify to X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp. and its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal year 20___,
and all reports on Form 8-K containing distribution or servicing reports
filed in respect of periods included in the year covered by that annual
report, of the Trust;
2. Based on my knowledge, the distribution information in these reports,
taken as a whole, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading as of the last day of the period covered by that annual report;
and
3. Based on my knowledge, the distribution or servicing information provided
to the trustee by the master servicers under the pooling and servicing
agreement for inclusion in these reports is included in these reports.
Date:
-------------------------
LASALLE BANK NATIONAL ASSOCIATION
By:
------------------------------------
[Name]
[Title]
EXHIBIT S-2
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY THE MASTER SERVICERS
CERTIFICATION
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp, Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP5 (the "Trust"),
issued pursuant to that certain Pooling and Servicing Agreement,
dated as of December 1, 2005 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp, as depositor (the "Depositor"), Midland Loan
Services, Inc. and GMAC Commercial Mortgage Corporation, as master
servicers (the "Master Servicers"), Midland Loan Services, Inc., as
special servicer (the "Special Servicer"), and LaSalle Bank National
Association as trustee (the "Trustee")
I, [identify the certifying individual], a [title] of [Midland Loan
Services, Inc.] [GMAC Commercial Mortgage Corporation], on behalf of [Midland
Loan Services, Inc.] [GMAC Commercial Mortgage Corporation], certify to X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp. and its officers, directors
and affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. Based on my knowledge and the statements made in the
corresponding certificate of the Special Servicer pursuant to Section 4.02(e) of
the Pooling and Servicing Agreement, a copy of which is attached hereto as
Exhibit "A", all reports required to be submitted by [Midland Loan Services,
Inc.] [GMAC Commercial Mortgage Corporation], in its capacity as a Master
Servicer, to the Trustee under the Pooling and Servicing Agreement (the
"Servicing Reports") for inclusion in the annual report on Form 10-K for the
fiscal year 20__ of the Trust and all reports on Form 8-K containing
distribution or servicing reports filed in respect of periods included in the
year covered by such annual report have been submitted to the Trustee;
2. Based on my knowledge and the statements made in the
corresponding certificate of the Special Servicer pursuant to Section 4.02(e) of
the Pooling and Servicing Agreement, a copy of which is attached hereto as
Exhibit "A", the information contained in the Servicing Reports, taken as a
whole, does not contain any untrue statement of a material facts or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
December 31, 20__;
3. I am responsible for reviewing the activities performed by
[Midland Loan Services, Inc.] [GMAC Commercial Mortgage Corporation] in its
capacity as a Master Servicer under the Pooling and Servicing Agreement and
based upon my knowledge and the annual compliance review required under Section
3.13 of the Pooling and Servicing Agreement with respect to [Midland Loan
Services, Inc.] [GMAC Commercial Mortgage Corporation] in its capacity as a
Master Servicer, and except as disclosed in the annual officer's certificate
required under Section 3.13 of the Pooling and Servicing Agreement, [Midland
Loan Services, Inc.] [GMAC Commercial Mortgage Corporation] in its capacity as a
Master Servicer has fulfilled its obligations under the Pooling and Servicing
Agreement; and
4. The report of [Midland Loan Services, Inc.'s] [GMAC Commercial
Mortgage Corporation's] certified public accountants required under Section 3.14
of the Pooling and Servicing Agreement discloses all significant deficiencies
relating to the compliance of [Midland Loan Services, Inc.] [GMAC Commercial
Mortgage Corporation] in its capacity as a Master Servicer with the minimum
servicing standards in accordance with a review conducted in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or similar standard as
set forth in the Pooling and Servicing Agreement.
Date:
-------------------------
[MIDLAND LOAN SERVICES, INC.]
[GMAC COMMERCIAL MORTGAGE CORPORATION]
By:
----------------------------
[Name]
[Title]
EXHIBIT S-3
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY SPECIAL SERVICER
CERTIFICATION
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp, Commercial
Mortgage Pass-Through Certificates, Series 2005-LDP5 (the "Trust"),
issued pursuant to that certain Pooling and Servicing Agreement,
dated as of December 1, 2005 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp, as depositor (the "Depositor"), Midland Loan
Services, Inc. and GMAC Commercial Mortgage Corporation, as master
servicers (the "Master Servicers"), Midland Loan Services, Inc., as
special servicer (the "Special Servicer"), and LaSalle Bank National
Association as trustee (the "Trustee")
I, [identify the certifying individual], a [title] of Midland Loan
Services, Inc., on behalf of Midland Loan Services, Inc., certify to X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., [________] and their officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification, that:
1. Based on my knowledge, all reports required to be submitted by
the Special Servicer to the Master Servicers under the Pooling and Servicing
Agreement (the "Servicing Reports") for inclusion in the annual report on Form
10-K for the fiscal year 20__ of the Trust and all reports on Form 8-K
containing distribution or servicing reports filed in respect of periods
included in the year covered by such annual report have been submitted to the
Master Servicers;
2. Based on my knowledge, the information contained in the Servicing
Reports, taken as a whole, does not contain any untrue statement of a material
facts or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not misleading
as of December 31, 20__;
3. I am responsible for reviewing the activities performed by the
Special Servicer under the Pooling and Servicing Agreement and based upon my
knowledge and the annual compliance review required under Section 3.13 of the
Pooling and Servicing Agreement with respect to the Special Servicer, and except
as disclosed in the annual officer's certificate required under Section 3.13 of
the Pooling and Servicing Agreement, the Special Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement; and
4. The report of the Special Servicer's certified public accountants
required under Section 3.14 of the Pooling and Servicing Agreement discloses all
significant deficiencies relating to the compliance of the Special Servicer with
the minimum servicing standards in accordance with a review conducted in
compliance with the Uniform Single Attestation Program for Mortgage Bankers or
similar standard as set forth in the Pooling and Servicing Agreement.
Date:
-------------------------
MIDLAND LOAN SERVICES, INC.
By:
----------------------------
[Name]
[Title]
EXHIBIT T
INITIAL COMPANION HOLDERS
The initial holders of the Brookdale Office Portfolio Companion Loan are set
forth in the related Intercreditor Agreement.
The initial holders of the Houston Galleria Companion Loans are set forth in the
related Intercreditor Agreement.
The initial holders of the Jordan Creek Companion Loan are set forth in the
related Intercreditor Agreement.
The Variable Annuity Life Insurance Company shall be the initial Companion
Holder with respect to the 00 Xxxx Xxxxxx XX Mortgage Loan.
Nomura Credit & Capital, Inc. shall be the initial Companion Holder with
respect to the Intech One & Two AB Mortgage Loan.
CBA-Mezzanine Capital Finance, LLC shall be the initial Companion Holder with
respect to the Lincoln Park Town Homes AB Mortgage Loan.
EXHIBIT U
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
To: Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: [Midland Loan Services, Inc.] [GMAC Commercial Mortgage
Corporation], National Association, in its capacity as a
Master Servicer (the "Master Servicer") under the Pooling and
Servicing Agreement dated as of December 1, 2005 (the "Pooling
and Servicing Agreement"), among the Master Servicer, [Midland
Loan Services, Inc.] [GMAC Commercial Mortgage Corporation],
as a Master Servicer, LaSalle Bank National Association, as
Trustee, and others.
Date: _________, 20___
Re: X.X. Xxxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2005-LDP5
Mortgage Loan (the "Mortgage Loan") identified by loan
number _____ on the Mortgage Loan Schedule attached to the
Pooling and Servicing Agreement and heretofore secured by
the Mortgaged Properties identified on the Mortgage Loan
Schedule by the following names:____________________
--------------------
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
As a Master Servicer under the Pooling and Servicing Agreement, we
hereby:
(a) Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
____ a full defeasance of the entire principal balance of the
Mortgage Loan; or
____ a partial defeasance of a portion of the principal balance of
the Mortgage Loan that represents and, an allocated loan amount of
$____________ or _______% of the entire principal balance of the
Mortgage Loan;
(b) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standards, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
(i) The Mortgage Loan documents permit the defeasance, and the terms
and conditions for defeasance specified therein were satisfied in all
material respects in completing the defeasance.
(ii) The defeasance was consummated on __________, 20__.
(iii) The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii) are
listed as "Qualified Investments for `AAA' Financings" under Paragraphs 1,
2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance
Criteria 2000, as amended to the date of the defeasance, (iii) are rated
`AAA' by S&P, (iv) if they include a principal obligation, the principal
due at maturity cannot vary or change, and (v) are not subject to
prepayment, call or early redemption.
(iv) The Master Servicer received an opinion of counsel (from
counsel approved by the Master Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an Adverse REMIC Event.
(v) The Master Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") that is a
Single-Purpose Entity (as defined in Standard & Poor's Structured Finance
Ratings Real Estate Finance Criteria, as amended to the date of the
defeasance (the "S&P Criteria")) as of the date of the defeasance, and
after the defeasance owns no assets other than the defeasance collateral
and real property securing Mortgage Loans included in the pool.
(vi) The Master Servicer received written confirmation of the
crediting of the defeasance collateral to an Eligible Account (as defined
in the S&P Criteria) in the name of the Defeasance Obligor, which account
is maintained as a securities account by a securities intermediary and has
been pledged to the Trustee.
(vii) The agreements executed in connection with the defeasance (i)
grant control of the pledged securities account to Trustee, (ii) require
the securities intermediary to make the scheduled payments on the Mortgage
Loan from the proceeds of the defeasance collateral directly to the Master
Servicer's collection account in the amounts and on the dates specified in
the Mortgage Loan documents or, in a partial defeasance, the portion of
such scheduled payments attributed to the allocated loan amount for the
real property defeased, increased by any defeasance premium specified in
the Mortgage Loan documents (the "Scheduled Payments"), (iii) permit
reinvestment of proceeds of the defeasance collateral only in Permitted
Investments (as defined in the S&P Criteria), (iv) permit release of
surplus defeasance collateral and earnings on reinvestment from the
pledged securities account only after the Mortgage Loan has been paid in
full, if any such release is permitted, (v) prohibit transfers by the
Defeasance Obligor of the defeasance collateral and subordinate liens
against the defeasance collateral, and (vi) provide for payment from
sources other than the defeasance collateral or other assets of the
Defeasance Obligor of all fees and expenses of the securities intermediary
for administering the defeasance and the securities account and all fees
and expenses of maintaining the existence of the Defeasance Obligor.
(viii) The Master Servicer received written confirmation from a firm
of independent certified public accountants, who were approved by the
Master Servicer in accordance with the Servicing Standard stating that (i)
revenues from the defeasance collateral (without taking into account any
earnings on reinvestment of such revenues) will be sufficient to timely
pay each of the Scheduled Payments after the defeasance including the
payment in full of the Mortgage Loan (or the allocated portion thereof in
connection with a partial defeasance) on its Maturity Date (or, in the
case of an ARD Loan, on its Anticipated Repayment Date), (ii) the revenues
received in any month from the defeasance collateral will be applied to
make Scheduled Payments within four (4) months after the date of receipt,
and (iii) interest income from the defeasance collateral to the Defeasance
Obligor in any calendar or fiscal year will not exceed such Defeasance
Obligor's interest expense for the Mortgage Loan (or the allocated portion
thereof in a partial defeasance) for such year.
(ix) The Mortgage Loan is not among the ten (10) largest loans in
the pool. The entire principal balance of the Mortgage Loan as of the date
of defeasance was less than both $[______] and five percent of pool
balance, which is less than [__]% of the aggregate Certificate Balance of
the Certificates as of the date of the most recent Trustee's Distribution
Date Statement received by us (the "Current Report").
(x) [The Master Servicer has received opinions of counsel stating
that the Trustee possesses a valid, perfected first priority security
interest in the defeasance collateral and that the documents executed in
connection with the defeasance are enforceable in accordance with their
respective terms.]
(xi) The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully
and partially defeased Mortgage Loans to $__________________, which is
_____% of the aggregate Certificate Balance of the Certificates as of the
date of the Current Report.
(c) Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance.
(d) Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
(e) Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
[MIDLAND LOAN SERVICES, INC.] [GMAC
COMMERCIAL MORTGAGE CORPORATION]
By:
------------------------------------
Name:
Title:
EXHIBIT V
INFORMATION REQUEST FROM CERTIFICATEHOLDER, BENEFICIAL OWNER OR
PROSPECTIVE PURCHASER
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - JPMorgan 2005-LDP5
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5
---------------------------------------------------------------
Pursuant to the Pooling and Servicing Agreement, dated as of
December 1, 2005 (the "Agreement"), by and among X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., as Depositor, Midland Loan Services, Inc. and GMAC
Commercial Mortgage Corporation, as Master Servicers, Midland Loan Services,
Inc., as Special Servicer, and LaSalle Bank National Association, as Trustee,
with respect to the X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a [Holder] [Certificate Owner] [prospective
purchaser] of $___________ aggregate [Certificate Balance/Notional Amount] of
the Class ____ Certificates.
2. The undersigned is requesting access to the information (the
"Information") on the Trustee's Internet Website pursuant to Section 4.02 of the
Agreement.
3. In consideration of the Trustee's disclosure to the undersigned
of the Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in evaluating the
Information), and such Information will not, without the prior written consent
of the Trustee, be disclosed by the undersigned or by its officers, directors,
partners employees, agents or representatives in any manner whatsoever, in whole
or in part; provided that the undersigned may provide all or any part of the
Information to any other person or entity that is contemplating the purchase of
any Certificate, but only if such person or entity confirms in writing such
prospective ownership interest and agrees to keep it confidential; and provided
that the undersigned may provide all or any part of the Information to its
auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate pursuant to
Section 5 of the Securities Act or under any other applicable law.
Capitalized terms not defined herein shall have the same meaning
ascribed to them in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[HOLDER] [CERTIFICATE OWNER] [PROSPECTIVE
PURCHASER]
By:
--------------------------------------
Name:
Title:
Telephone No.:
EXHIBIT W
TRUSTEE CERTIFICATION/EXCEPTION REPORT
[DATE]
To the Persons Listed on the attached Schedule A
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-LDP5
---------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the Pooling Servicing Agreement,
dated as of December 1, 2005 (the "Agreement"), by and among X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., as Depositor, Midland Loan Services, Inc.
and GMAC Commercial Mortgage Corporation, as Master Servicers, Midland Loan
Services, Inc., as Special Servicer, and LaSalle Bank National Association, as
Trustee, the undersigned, as Trustee, hereby certifies that, except as noted on
the attached Trustee Exception Report, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or for which a
Liquidation Event has occurred) the Trustee has, subject to Section 2.02(e) of
the Agreement, reviewed the documents delivered to it pursuant to Section 2.01
of the Agreement and has determined that [(i) all documents specified in clauses
(i) through (v), (ix) through (xii) and (xvi) (or, with respect to clause (xvi),
a copy of such letter of credit and the required officer's certificate), if any,
of the definition of "Mortgage File," as applicable, are in its possession, (ii)
the foregoing documents delivered or caused to be delivered by the Mortgage Loan
Sellers have been reviewed by it or by a Custodian on its behalf and appear
regular on their face and appear to be executed and to relate to such Mortgage
Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (iv), (vi) and (viii)(c) in the definition of
"Mortgage Loan Schedule" is correct].
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------
Name:
Title:
EXHIBIT X
FORM OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated ___________ ___,
200__ (this "Agreement"), among ___________________________, a (state)
corporation (the "Assignor"), PACIFIC LIFE INSURANCE COMPANY, a Nebraska
corporation (the "Assignee"), and _____________________________ (the "Trustee")
as Trustee for the registered holders of _____________________ Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
_________ (the "Trust").
For and in consideration of good and valuable consideration the receipt
and sufficiency of which hereby are acknowledged, and of the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. The Assignor hereby grants, transfers, conveys and assigns to the
Assignee all of its rights, title, interests and obligations, in its capacity as
special servicer only, in and to the agreements set forth on Exhibit A hereto
(the "Relevant Agreements") insofar as such rights, title, interests and
obligations arise only, and specifically, with respect to the Loan (as such term
is defined on Exhibit B hereto) (the "Assigned Servicing Rights"). The Assignee
hereby assumes all of the Assigned Servicing Rights, and the Assignor is hereby
relieved and released of any future obligations with respect to the Assigned
Servicing Rights from and after the date hereof; provided, however,
notwithstanding the foregoing, the Assignor is not assigning and is expressly
retaining (i) all rights in respect of accrued and unpaid servicing fees,
ancillary income, reimbursement rights and indemnification rights arising prior
to the date hereof and pursuant to the terms of the Relevant Agreements and (ii)
all right, title and interest in and to the Relevant Agreements insofar as such
right, title and interest are not expressly related to the special servicing of
the Loan. In addition, the Assignee hereby agrees to be bound by the terms of
the Relevant Agreements as if it were the original "Special Servicer" under such
agreements with respect to the Loan.
2. The Assignor warrants and represents to, and covenants with, the
Assignee and the Trustee that:
(a) The Assignor is a corporation duly organized, validly existing and in
good standing under the laws of the State of (state), and has all requisite
corporate power and authority to transfer and assign to the Assignee all of its
right, title and interest in, to and under the Assigned Servicing Rights;
(b) The Assignor has full corporate power and authority to execute,
deliver and perform under this Agreement, and to consummate the transactions set
forth herein. The execution, delivery and performance by the Assignor of this
Agreement, and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action of the Assignor.
This Agreement has been duly executed and delivered by the Assignor and will
constitute a valid, legal and binding obligation of the Assignor enforceable
against the Assignor in accordance with the terms of this Agreement, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and
(c) No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is required to
be obtained or made by the Assignor in connection with the execution, delivery
or performance by the Assignor of this Agreement, or the consummation by it of
the transactions contemplated hereby.
3. The Assignee warrants and represents to, and covenants with, the
Assignor and the Trustee that:
(a) Assignee hereby makes the representations and warranties set forth in
Section _______ of the Pooling and Servicing Agreement (as defined on Exhibit
A), mutatis mutandis, as of the date hereof;
(b) The Assignee is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nebraska, and has all requisite
corporate power and authority to assume all of the right, title and interest of
Assignor in, to and under the Assigned Servicing Rights;
(c) The Assignee has full corporate power and authority to execute,
deliver and perform under this Agreement, and to consummate the transactions set
forth herein. The execution, delivery and performance by the Assignee of this
Agreement, and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action of the Assignee.
This Agreement has been duly executed and delivered by the Assignee and will
constitute a valid, legal and binding obligation of the Assignee enforceable
against the Assignee in accordance with the terms of this Agreement, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(d) No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is required to
be obtained or made by the Assignee in connection with the execution, delivery
or performance by the Assignee of this Agreement, or the consummation by it of
the transactions contemplated hereby.; and
(e) The Assignee meets all requirements to act as "Special Servicer" under
and pursuant to the Relevant Agreements.
4. From and after the date hereof, Trustee hereby acknowledges, agrees and
recognizes that the Assignee is the lawful owner of the Assigned Servicing
Rights and succeeds to the status of "Special Servicer" under the Relevant
Agreements with respect to the Loan, and Trustee shall look solely to the
Assignee for performance from and after the date hereof of the Assigned
Servicing Rights.
5. All demands, notices and communications hereunder shall be in writing
and shall be given via registered or certified mail to the person at the address
set forth below (or such other addresses as to which notice is given to the
other parties hereto):
(a) If to the Assignor, to it at:
------------------------------
------------------------------
------------------------------
------------------------------
Attention:
Telecopy:
With a copy to:
------------------------------
------------------------------
------------------------------
Attention:
Telecopy:
(b) If to the Assignee, to it at:
Pacific Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telecopy: 949.219.6570
With a copy to:
Dechert LLP
0000 Xxxx Xxxxxx
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopy: 215.994.2222
(c) If to Trustee, to it at:
------------------------------
------------------------------
------------------------------
------------------------------
Attention:
------------------------------------------
Re: ________________ Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series_________
Telecopy:
6. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
7. This Agreement shall binding upon and inure to the benefit of the
parties hereto and their successors and permitted assigns.
8. No term or provision of this Agreement may be waived or modified unless
such waiver or modification is in writing and signed by the party against whom
such waiver or modification is sought to be enforced.
9. This Agreement shall survive the conveyance of the Assigned Servicing
Rights by the Assignor.
10. All capitalized terms used herein and not defined herein shall have
the respective meanings ascribed to them in the Relevant Agreements.
11. For the purpose for facilitating the execution of 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 and be one and the same
instrument.
12. The parties agree to execute, acknowledge and deliver such further
instruments and documents as may be reasonably requested by any party to carry
out the intent of this Agreement.
13. This Agreement sets forth the entire understanding and agreement
between the parties as to the matters covered herein, and supersedes and
replaces any prior understanding, agreement or statement of intent as to the
matters covered herein.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers as of the date first above written.
(Assignor) , a
------------------------------------
(state) corporation
By:
--------------------------------------
Name:
Title:
PACIFIC LIFE INSURANCE COMPANY, a
Nebraska corporation
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
-----------------------------------, AS
TRUSTEE FOR THE REGISTERED
HOLDERS OF
-----------------------------------------
COMMERCIAL MORTGAGE SECURITIES CORP.,
COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES
XXXX
-------------
By:
Name:
Title:
EXHIBIT A
[Relevant Agreements]
Pooling and Servicing Agreement dated as of ( xxxxx ) by and among
_________________ Commercial Mortgage Securities Corp., as Depositor,
___________________________, as Servicer, ___________________________, as
Special Servicer, _____________________, as Trustee, and __________________, as
Fiscal Agent with respect to the XXXXXX Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series (XXXX) (the "Pooling and
Servicing Agreement").
EXHIBIT B
[Defined Terms]
"Loan" shall mean that certain loan in the original principal amount of
$xxx,xxx.xx, which is (a) evidenced by that certain Promissory Note dated (date)
______ made by (Borrower Name) a (state) limited liability company, in favor of
________________________________ (the "Original Lender") and currently held by
Trustee on behalf of the Trust, (b) secured by a first priority security
interest in the property commonly known as the xxxxxxxxxx the "Property"),
and (c) subject to that certain Participation Agreement dated (xxxxxx) among
the Trustee, as successor in interest to the Original Lender, and Assignee.
SCHEDULE 1
MORTGAGE LOANS CONTAINING ADDITIONAL DEBT
1 EHY Brookdale Office Portfolio
2 JPMCB Houston Galleria
5 EHY Jordan Creek
24 EHY NEC America Corporate Center
28 JPMCB 45 Broadway
37 NCCI Intech One & Two
38 IXIS Hospitality Ventures Portfolio
00 XXX 00 Xxxx Xxxxxx
70 EHY Aslan Birmingham Portfolio
85 JPMCB Xxxxxx State University Multifamily Properties
113 IXIS Waterlick Plaza
154 NCCI Lincoln Park Town Homes
HGTSCL JPMCB Houston Galleria
SCHEDULE 2
MORTGAGE LOANS WHICH INITIALLY PAY INTEREST ONLY
Loan Number Seller Loan Name
--------------------------------------------------------------------
2 JPMCB Houston Galleria
3 JPMCB Xxxxx Office Portfolio
4 NCCI 2 Grand Central Tower
7 JPMCB DRA - CRT Portfolio II
NCCI Bluebird Portfolio
8 NCCI Rolling Winds Apts.
9 NCCI Xxxxxxxx Xxxxxxx
10 NCCI Crosswinds III
11 NCCI Glens @ XX
00 NCCI Crosswinds II
13 NCCI Crosswinds I
14 NCCI Crosswinds IV
15 NCCI Diamond Ridge
JPMCB Colony Portfolio
16 JPMCB Prologis - Platte Valley Portfolio
17 JPMCB Briargate On Main
18 JPMCB 0000 Xxxxx XxXxxxxx
19 JPMCB Lodges at Frisco
20 JPMCB Park Center Building NEC
21 JPMCB Mandalay at Shadow Lake
22 JPMCB Prologis - Riverside Portfolio
23 JPMCB Prologis - Congleton Distribution
34 NCCI Eckerd Portfolio
35 NCCI Lincoln Plaza
36 NCCI 000 Xxxxxxxx (NY)
40 NCCI Market at Polaris
47 JPMCB LXP-Experian - TRW
52 NCCI Granite Run Apts.
62 EHY The Vanderbilt Apartments
73 EHY Walmart (Cincinnati)
88 NCCI Home Depot (Vernon Hills)
97 JPMCB Sterling Hills Apts
106 IXIS Le Merigot Ground Lease
116 JPMCB Wisconsin Apartment Portfolio
136 JPMCB The Summit at The Ridges of Geneva East
157 NCCI Walgreens - Hobart
158 PNC Tall Timber Apartments
174 PNC Valley Creek Apartments
179 NCCI Golfsmith
188 EHY Advance Auto Parts
SCHEDULE 3
CLASS X-2 REFERENCE RATE SCHEDULE
Distribution Date Reference Rate
----------------- --------------
January 2006 5.30424%
February 2006 5.30248%
March 2006 5.30378%
April 2006 5.46767%
May 2006 5.30250%
June 2006 5.46768%
July 2006 5.30252%
August 2006 5.46769%
September 2006 5.46769%
October 2006 5.30254%
November 2006 5.46770%
December 2006 5.30255%
January 2007 5.30256%
February 2007 5.30257%
March 2007 5.30273%
April 2007 5.46771%
May 2007 5.30258%
June 2007 5.46771%
July 2007 5.30250%
August 2007 5.46758%
September 2007 5.46751%
October 2007 5.30231%
November 2007 5.46737%
December 2007 5.30217%
January 2008 5.46723%
February 2008 5.30150%
March 2008 5.30030%
April 2008 5.46361%
May 2008 5.29862%
June 2008 5.46343%
July 2008 5.29843%
August 2008 5.46324%
September 2008 5.46315%
October 2008 5.29829%
November 2008 5.46310%
December 2008 5.29796%
January 2009 5.30424%
February 2009 5.30423%
March 2009 5.30447%
April 2009 5.50285%
May 2009 5.33699%
June 2009 5.50275%
July 2009 5.33689%
August 2009 5.50264%
September 2009 5.50260%
October 2009 5.33673%
November 2009 5.50249%
December 2009 5.33662%
January 2010 5.33656%
February 2010 5.33604%
March 2010 5.33649%
April 2010 5.50169%
May 2010 5.33631%
June 2010 5.50205%
July 2010 5.33618%
August 2010 5.51996%
September 2010 5.52332%
October 2010 5.35790%
November 2010 5.52548%
December 2010 5.36172%
January 2011 5.36471%
February 2011 5.36471%
March 2011 5.36514%
April 2011 5.53207%
May 2011 5.36516%
June 2011 5.53474%
July 2011 5.36737%
August 2011 5.53472%
September 2011 5.53471%
October 2011 5.36734%
November 2011 5.53291%
December 2011 5.36571%
January 2012 5.53289%
February 2012 5.36569%
March 2012 5.36584%
April 2012 5.53285%
May 2012 5.36203%
June 2012 5.52846%
July 2012 5.36200%
August 2012 5.52842%
September 2012 5.52840%
October 2012 5.36608%
November 2012 5.52892%
December 2012 5.36244%
SCHEDULE 4
CLASS A-SB PLANNED PRINCIPAL BALANCE SCHEDULE
Date Balance
-------------------- -------------------
January 15, 2006 $169,455,000.00
February 15, 2006 169,455,000.00
March 15, 2006 169,455,000.00
April 15, 2006 169,455,000.00
May 15, 2006 169,455,000.00
June 15, 2006 169,455,000.00
July 15, 2006 169,455,000.00
August 15, 2006 169,455,000.00
September 15, 2006 169,455,000.00
October 15, 2006 169,455,000.00
November 15, 2006 169,455,000.00
December 15, 2006 169,455,000.00
January 15, 2007 169,455,000.00
February 15, 2007 169,455,000.00
March 15, 2007 169,455,000.00
April 15, 2007 169,455,000.00
May 15, 2007 169,455,000.00
June 15, 2007 169,455,000.00
July 15, 2007 169,455,000.00
August 15, 2007 169,455,000.00
September 15, 2007 169,455,000.00
October 15, 2007 169,455,000.00
November 15, 2007 169,455,000.00
December 15, 2007 169,455,000.00
January 15, 2008 169,455,000.00
February 15, 2008 169,455,000.00
March 15, 2008 169,455,000.00
April 15, 2008 169,455,000.00
May 15, 2008 169,455,000.00
June 15, 2008 169,455,000.00
July 15, 2008 169,455,000.00
August 15, 2008 169,455,000.00
September 15, 2008 169,455,000.00
October 15, 2008 169,455,000.00
November 15, 2008 169,455,000.00
December 15, 2008 169,455,000.00
January 15, 2009 169,455,000.00
February 15, 2009 169,455,000.00
March 15, 2009 169,455,000.00
April 15, 2009 169,455,000.00
May 15, 2009 169,455,000.00
June 15, 2009 169,455,000.00
July 15, 2009 169,455,000.00
August 15, 2009 169,455,000.00
September 15, 2009 169,455,000.00
October 15, 2009 169,455,000.00
November 15, 2009 169,455,000.00
December 15, 2009 169,455,000.00
January 15, 2010 169,455,000.00
February 15, 2010 169,455,000.00
March 15, 2010 169,455,000.00
April 15, 2010 169,455,000.00
May 15, 2010 169,455,000.00
June 15, 2010 169,454,965.40
July 15, 2010 167,340,451.50
August 15, 2010 165,387,986.38
September 15, 2010 163,426,269.49
October 15, 2010 160,830,911.84
November 15, 2010 158,412,805.76
December 15, 2010 155,584,526.06
January 15, 2011 153,000,452.44
February 15, 2011 150,272,628.00
March 15, 2011 146,631,146.46
April 15, 2011 143,873,365.31
May 15, 2011 140,802,911.11
June 15, 2011 138,017,723.52
July 15, 2011 134,920,897.90
August 15, 2011 132,108,048.79
September 15, 2011 129,281,972.57
October 15, 2011 126,145,296.62
November 15, 2011 123,291,178.31
December 15, 2011 120,127,173.46
January 15, 2012 117,244,752.04
February 15, 2012 114,348,775.57
March 15, 2012 110,848,770.94
April 15, 2012 107,922,711.18
May 15, 2012 104,688,596.07
June 15, 2012 101,733,563.56
July 15, 2012 98,471,212.58
August 15, 2012 95,486,937.64
September 15, 2012 92,488,627.48
October 15, 2012 89,184,097.99
November 15, 2012 86,156,142.54
December 15, 2012 82,746,841.64
January 15, 2013 79,652,880.71
February 15, 2013 76,544,379.94
March 15, 2013 72,529,619.01
April 15, 2013 69,387,639.30
May 15, 2013 65,934,692.70
June 15, 2013 62,761,718.32
July 15, 2013 59,278,566.31
August 15, 2013 56,074,308.94
September 15, 2013 52,854,992.14
October 15, 2013 49,326,676.27
November 15, 2013 46,075,645.41
December 15, 2013 42,516,423.08
January 15, 2014 39,233,383.17
February 15, 2014 35,934,912.66
March 15, 2014 31,746,493.81
April 15, 2014 28,412,831.45
May 15, 2014 24,773,086.38
June 15, 2014 21,406,646.29
July 15, 2014 17,734,958.22
August 15, 2014 14,335,435.48
September 15, 2014 10,919,933.34
October 15, 2014 7,200,431.13
November 15, 2014 3,751,389.90
December 15, 2014 0.00
