EXECUTION COPY
STRUCTURED ASSET SECURITIES CORPORATION II,
Depositor
and
MIDLAND LOAN SERVICES, INC.,
Master Servicer
and
MIDLAND LOAN SERVICES, INC.,
Special Servicer
and
XXXXX FARGO BANK, N.A.,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of March 11, 2004
----------
$1,234,613,151
LB-UBS Commercial Mortgage Trust 2004-C2
Commercial Mortgage Pass-Through Certificates,
Series 2004-C2
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN ADJUSTMENTS TO THE
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES
SECTION 1.01. Defined Terms..................................................................................8
SECTION 1.02. General Interpretive Principles...............................................................99
SECTION 1.03. Certain Adjustments to the Principal Distributions on the Certificates.......................100
ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Trust Mortgage Loans........................................102
SECTION 2.02. Acceptance of Trust Fund by Trustee..........................................................105
SECTION 2.03. Repurchase of Trust Mortgage Loans for Document Defects and Breaches of
Representations and Warranties.............................................................107
SECTION 2.04. Representations, Warranties and Covenants of the Depositor...................................111
SECTION 2.05. Acceptance of Grantor Trusts by Trustee; Issuance of the Class V Certificates................131
SECTION 2.06. Execution, Authentication and Delivery of Class R-I Certificates; Creation of REMIC I
Regular Interests..........................................................................131
SECTION 2.07. Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by Trustee...................131
SECTION 2.08. Execution, Authentication and Delivery of Class R-II Certificates; Creation of REMIC
II Regular Interests.......................................................................132
SECTION 2.09. Conveyance of REMIC II Regular Interests; Acceptance of REMIC III by Trustee.................132
SECTION 2.10. Execution, Authentication and Delivery of REMIC III Certificates.............................132
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.........................................................133
SECTION 3.02. Collection of Mortgage Loan Payments.........................................................137
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve
Accounts...................................................................................140
SECTION 3.04. Pool Custodial Account, Defeasance Deposit Account, Collection Account, Interest
Reserve Account and Excess Liquidation Proceeds Account....................................142
SECTION 3.04A. 000 Xxxxx Xxxxxx Custodial Account...........................................................147
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SECTION 3.04B. Somerset Collection Custodial Account........................................................149
SECTION 3.04C. Xxxxxxxx Place Custodial Account.............................................................152
SECTION 3.04D. Cumberland Place Custodial Account...........................................................154
SECTION 3.05. Permitted Withdrawals From the Pool Custodial Account, the Collection Account, the
Interest Reserve Account and the Excess Liquidation Proceeds Account.......................157
SECTION 3.05A. Permitted Withdrawals From the 000 Xxxxx Xxxxxx Custodial Account............................163
SECTION 3.05B. Permitted Withdrawals From the Somerset Collection Custodial Account.........................169
SECTION 3.05C. Permitted Withdrawals From the Xxxxxxxx Place Custodial Account..............................177
SECTION 3.05D. Permitted Withdrawals From the Cumberland Place Custodial Account............................181
SECTION 3.06. Investment of Funds in the Collection Account, the Servicing Accounts, the Reserve
Accounts, the Defeasance Deposit Account, the Custodial Accounts, the REO Accounts,
the Interest Reserve Account and the Excess Liquidation Proceeds Account...................186
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage;
Environmental Insurance....................................................................189
SECTION 3.08. Enforcement of Alienation Clauses............................................................193
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required Appraisals; Appraisal Reduction
Calculation................................................................................197
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage Files................................202
SECTION 3.11. Servicing Compensation; Payment of Expenses; Certain Matters Regarding Servicing
Advances...................................................................................203
SECTION 3.12. Property Inspections; Collection of Financial Statements; Delivery of Certain Reports........212
SECTION 3.12A. Delivery of Certain Reports to the Serviced Non-Trust Mortgage Loan Noteholders..............215
SECTION 3.12B. Statements to the Serviced Non-Trust Mortgage Loan Noteholders...............................216
SECTION 3.13. Annual Statement as to Compliance............................................................216
SECTION 3.14. Reports by Independent Public Accountants....................................................217
SECTION 3.15. Access to Certain Information................................................................218
SECTION 3.16. Title to REO Property; REO Accounts..........................................................219
SECTION 3.17. Management of REO Property...................................................................222
SECTION 3.18. Sale of Trust Mortgage Loans and Administered REO Properties.................................225
SECTION 3.19. Additional Obligations of the Master Servicer; Obligations to Notify Ground Lessors
and Hospitality Franchisors; the Special Servicer's Right to Request the Master
Servicer to Make Servicing Advances........................................................230
SECTION 3.20. Modifications, Waivers, Amendments and Consents; Defeasance..................................232
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special Servicer; Record Keeping...........238
SECTION 3.22. Sub-Servicing Agreements.....................................................................240
SECTION 3.23. Representations and Warranties of the Master Servicer........................................242
SECTION 3.24. Representations and Warranties of the Special Servicer.......................................244
SECTION 3.25. Certain Matters Regarding the Purchase of the 000 Xxxxx Xxxxxx Trust Mortgage Loan,
the GIC Office Trust Mortgage Loan, the Somerset
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Collection Trust Mortgage Loan, the Xxxxxxxx Place Trust Mortgage Loan and the Cumberland
Place Trust Mortgage Loan..................................................................245
SECTION 3.26. Application of Default Charges...............................................................247
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions................................................................................252
SECTION 4.02. Statements to Certificateholders; CMSA Loan Periodic Update File.............................264
SECTION 4.03. P&I Advances With Respect to the Mortgage Pool...............................................272
SECTION 4.04. Allocations of Realized Losses and Additional Trust Fund Expenses............................278
SECTION 4.05. Various Reinstatement Amounts................................................................279
SECTION 4.06. Calculations.................................................................................280
SECTION 4.07. Use of Agents................................................................................281
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.............................................................................282
SECTION 5.02. Registration of Transfer and Exchange of Certificates........................................282
SECTION 5.03. Book-Entry Certificates......................................................................290
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates............................................291
SECTION 5.05. Persons Deemed Owners........................................................................292
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special Servicer.................................293
SECTION 6.02. Continued Qualification and Compliance of Master Servicer; Merger, Consolidation or
Conversion of Depositor, Master Servicer or Special Servicer...............................293
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and Special Servicer...................294
SECTION 6.04. Resignation of Master Servicer and the Special Servicer......................................295
SECTION 6.05. Rights of Depositor, Trustee and Serviced Non-Trust Mortgage Loan Noteholders in
Respect of the Master Servicer and the Special Servicer....................................296
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate with Trustee....................296
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with Master Servicer....................296
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with Special Servicer....................297
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SECTION 6.09. Designation of Special Servicer and Controlling Class Representative by the
Controlling Class..........................................................................297
SECTION 6.10. Master Servicer or Special Servicer as Owner of a Certificate................................299
SECTION 6.11. Certain Powers of the Controlling Class Representative.......................................299
SECTION 6.12. Certain Matters Regarding the 000 Xxxxx Xxxxxx Loan Combination..............................302
SECTION 6.13. Certain Matters Regarding the Somerset Collection Loan Combination...........................305
SECTION 6.14. Certain Matters Regarding the Xxxxxxxx Place Loan Combination................................310
SECTION 6.15. Certain Matters Regarding the Cumberland Place Loan Combination..............................315
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default and GIC Office Events of Default...........................................319
SECTION 7.02. Trustee to Act; Appointment of Successor.....................................................325
SECTION 7.03. Notification to Certificateholders...........................................................326
SECTION 7.04. Waiver of Events of Default and GIC Office Events of Default.................................327
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default or a GIC Office Event of Default........327
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee............................................................................328
SECTION 8.02. Certain Matters Affecting Trustee............................................................329
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of Certificates or
Mortgage Loans.............................................................................330
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates................................................330
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee..............................331
SECTION 8.06. Eligibility Requirements for Trustee.........................................................332
SECTION 8.07. Resignation and Removal of Trustee...........................................................332
SECTION 8.08. Successor Trustee............................................................................333
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal Agent..........................................334
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee................................................334
SECTION 8.11. Appointment of Custodians....................................................................335
SECTION 8.12. Appointment of Authenticating Agents.........................................................336
SECTION 8.13. Appointment of Tax Administrators............................................................337
SECTION 8.14. Access to Certain Information................................................................337
SECTION 8.15. Reports to the Securities and Exchange Commission and Related Reports........................339
SECTION 8.16. Representations and Warranties of Trustee....................................................344
SECTION 8.17. Appointment of Fiscal Agent..................................................................346
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Trust Mortgage Loans.......................348
SECTION 9.02. Additional Termination Requirements..........................................................356
SECTION 9.03. GIC Office REO Property......................................................................357
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.........................................................................358
SECTION 10.02. Grantor Trust Administration.................................................................361
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment....................................................................................363
SECTION 11.02. Recordation of Agreement; Counterparts.......................................................365
SECTION 11.03. Limitation on Rights of Certificateholders...................................................365
SECTION 11.04. Governing Law; Consent to Jurisdiction.......................................................366
SECTION 11.05. Notices......................................................................................366
SECTION 11.06. Severability of Provisions...................................................................367
SECTION 11.07. Grant of a Security Interest.................................................................367
SECTION 11.08. Xxxxxx Act...................................................................................367
SECTION 11.09. Successors and Assigns; Beneficiaries........................................................368
SECTION 11.10. Article and Section Headings.................................................................368
SECTION 11.11. Notices to Rating Agencies...................................................................368
SECTION 11.12. Complete Agreement...........................................................................370
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SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
------------ --------------------
I Trust Mortgage Loan Schedule
II Exceptions to the Representations and Warranties of the Depositor
III Schedule of Environmentally Insured Mortgage Loans
IV Reference Rate Schedule
Exhibit No. Exhibit Description
----------- -------------------
A-1 Form of Class [A-1] [A-2] [A-3] [A-4] Certificate
A-2 Form of Class [X-CL] [X-CP] Certificate
A-3 Form of Class [B] [C] [D] [E] [F] Certificate
A-4 Form of Class [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T]
Certificate
A-5 Form of Class [R-I] [R-II] [R-III] Certificate
A-6 Form of Class V Certificate
B Form of Distribution Date Statement
C Form of Custodial Certification
D-1 Form of Master Servicer Request for Release
D-2 Form of Special Servicer Request for Release
E Form of Loan Payoff Notification Report
F-1 Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
F-2A Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2B Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2C Form of Transferee Certificate for Transfers of Interests in Rule
144A Global Certificates
F-2D Form of Transferee Certificate for Transfers of Interests in
Regulation S Global Certificates
G-1 Form I of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
G-2 Form II of Transferee Certificate in Connection with ERISA
(Book-Entry Non-Registered Certificates)
H-1 Form of Transfer Affidavit and Agreement regarding Residual
Interest Certificates
H-2 Form of Transferor Certificate regarding Residual Interest
Certificates
I-1 Form of Notice and Acknowledgment
I-2 Form of Acknowledgment of Proposed Special Servicer
J Form of UCC-1 Financing Statement Schedule
K Sub-Servicers in respect of which Sub-Servicing Agreements are in
effect or being negotiated as of the Closing Date
L-1 Form of Information Request/Investor Certification for Website
Access from Certificate [Holder] [Owner]
L-2 Form of Information Request/Investor Certification for Website
Access from Prospective Investor
M Form of Defeasance Certification
N Form of Seller/Depositor Notification
O Form of Controlling Class Representative Confidentiality
Agreement
P Form of Trustee Backup Certification
Q Form of Master Servicer Backup Certification
R Form of Special Servicer Backup Certification
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This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of March 11, 2004, among STRUCTURED ASSET SECURITIES CORPORATION
II, as Depositor, MIDLAND LOAN SERVICES, INC., as Master Servicer and as Special
Servicer, and XXXXX FARGO BANK, N.A., as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, which are to be issued
hereunder in multiple Classes and which in the aggregate will evidence the
entire beneficial ownership interest in the Trust Fund.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Trust Mortgage Loans (exclusive of any
collections that constitutes part of the Excess Servicing Strip or collections
of Additional Interest on the ARD Trust Mortgage Loans after their respective
Anticipated Repayment Dates) and certain other related assets subject to this
Agreement as a REMIC for federal income tax purposes, and such segregated pool
of assets will be designated as "REMIC I". The Class R-I Certificates will
represent the sole class of "residual interests" in REMIC I for purposes of the
REMIC Provisions under federal income tax law. A separate REMIC I Regular
Interest will, on the Closing Date, be issued with respect to, and will
thereafter relate to, each Trust Mortgage Loan in REMIC I. Each REMIC I Regular
Interest issued with respect to, and relating to, a Trust Mortgage Loan, shall
also relate to any successor REO Trust Mortgage Loan with respect to such Trust
Mortgage Loan. Each REMIC I Regular Interest shall (i) bear a numeric
designation that is the same as the loan number for the related Trust Mortgage
Loan set forth on the Trust Mortgage Loan Schedule, (ii) accrue interest at a
per annum rate described in the definition of "REMIC I Remittance Rate" and
(iii) have an initial Uncertificated Principal Balance equal to the Cut-off Date
Balance of the related Trust Mortgage Loan. The Legal Final Distribution Date of
each of the REMIC I Regular Interests is the Distribution Date immediately
following the third anniversary of the end of the remaining amortization term
(as determined as of the Closing Date) of the related Trust Mortgage Loan. None
of the REMIC I Regular Interests will be certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II". The Class R-II Certificates will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The following table sets forth the designation,
the REMIC II Remittance Rate and the initial Uncertificated Principal Balance
for each of the REMIC II Regular Interests. The Legal Final Distribution Date
for each REMIC II Regular Interest is the latest Rated Final Distribution Date.
None of the REMIC II Regular Interests will be certificated.
REMIC II Initial Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- ----------------------
A-1-1 Variable (1) $ 30,710,000
A-1-2 Variable (1) $ 35,999,000
A-1-3 Variable (1) $ 33,291,000
A-2-1 Variable (1) $ 17,436,000
A-2-2 Variable (1) $ 53,198,000
A-2-3 Variable (1) $ 77,617,000
A-2-4 Variable (1) $118,749,000
A-3-1 Variable (1) $138,082,000
A-3-2 Variable (1) $ 5,918,000
A-4-1 Variable (1) $ 73,396,000
A-4-2 Variable (1) $485,087,000
B Variable (1) $ 15,433,000
C Variable (1) $ 13,889,000
D Variable (1) $ 12,346,000
E-1 Variable (1) $ 6,288,000
E-2 Variable (1) $ 10,688,000
F-1 Variable (1) $ 8,229,000
F-2 Variable (1) $ 5,661,000
G-1 Variable (1) $ 11,257,000
G-2 Variable (1) $ 10,348,000
H-1 Variable (1) $ 11,588,000
H-2 Variable (1) $ 759,000
J Variable (1) $ 10,802,000
K Variable (1) $ 12,347,000
L Variable (1) $ 4,629,000
M Variable (1) $ 4,630,000
N Variable (1) $ 3,087,000
P Variable (1) $ 3,086,000
Q Variable (1) $ 3,087,000
S Variable (1) $ 3,086,000
T Variable (1) $ 13,890,151
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(1) The REMIC II Remittance Rate in effect for any REMIC II Regular Interest
during any Interest Accrual Period shall equal the Weighted Average REMIC I
Remittance Rate for such Interest Accrual Period.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC III". The Class R-III Certificates will evidence the sole
class of "residual interests" in REMIC III for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
Class designation, Pass-Through Rate and original Class Principal Balance for
each Class of the Regular Interest Certificates. For federal income tax
purposes, each Class of the Regular Interest Certificates (exclusive of the
Class X-CL and Class X-CP Certificates), each of the 31 REMIC III Components of
the Class X-CL Certificates and each of the 22 REMIC III Components of the Class
X-CP Certificates will be designated as a separate "regular interest" in REMIC
III. The Legal Final Distribution Date for each Class of Regular Interest
Certificates (exclusive of the Class X-CL and Class X-CP Certificates), for each
of the 31 REMIC III Components
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of the Class X-CL Certificates and for each of the 22 REMIC III Components of
the Class X-CP Certificates is the latest Rated Final Distribution Date.
Class Original Class
Designation Pass-Through Rate Principal Balance
----------- ----------------- -----------------
Class A-1 2.946% per annum $100,000,000
Class A-2 3.246% per annum $267,000,000
Class A-3 3.973% per annum $144,000,000
Class A-4 4.367% per annum $558,483,000
Class B 4.427% per annum $ 15,433,000
Class C 4.437% per annum $ 13,889,000
Class D 4.457% per annum $ 12,346,000
Class E 4.487% per annum $ 16,976,000
Class F Variable (1) $ 13,890,000
Class G Variable (1) $ 21,605,000
Class H Variable (1) $ 12,347,000
Class J Variable (1) $ 10,802,000
Class K Variable (1) $ 12,347,000
Class L Variable (1) $ 4,629,000
Class M Variable (1) $ 4,630,000
Class N Variable (1) $ 3,087,000
Class P Variable (1) $ 3,086,000
Class Q Variable (1) $ 3,087,000
Class S Variable (1) $ 3,086,000
Class T Variable (1) $ 13,890,151
Class X-CL Variable (1) (2)
Class X-CP Variable (1) (3)
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(1) The respective Pass-Through Rates for the Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class P, Class Q, Class S, Class T,
Class X-CL and Class X-CP Certificates will, in the case of each of those
Classes, be a variable rate per annum calculated in accordance with the
definition of "Pass-Through Rate".
(2) The Class X-CL Certificates will not have a Class Principal Balance and
will not entitle their Holders to receive distributions of principal. The
Class X-CL Certificates will have a Class Notional Amount which will be
equal to the aggregate of the Component Notional Amounts of the Class X-XX
XXXXX III Components from time to time. As more specifically provided
herein, interest in respect of the Class X-CL Certificates will consist of
the aggregate amount of interest accrued on the respective Component
Notional Amounts of the Class X-XX XXXXX III Components from time to time.
(3) The Class X-CP Certificates will not have a Class Principal Balance and
will not entitle their Holders to receive distributions of principal. The
Class X-CP Certificates will have a Class Notional Amount which will be
equal to the aggregate of the Component Notional Amounts of the Class X-CP
REMIC III Components from time to time. As more specifically provided
herein, interest in respect of the Class X-CP Certificates will consist of
the aggregate amount of interest accrued on the respective Component
Notional Amounts of the Class X-CP REMIC III Components from time to time.
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As provided herein, the Trustee shall take all actions necessary to
ensure that those portions of the Trust Fund consisting of the Excess Servicing
Strip and any collections of Additional Interest, respectively, each maintains
its status as a Grantor Trust under the Code.
The Initial Pool Balance will be $1,234,613,151.
There exists one Trust Mortgage Loan (the "666 Fifth Avenue Trust
Mortgage Loan"), with a Cut-off Date Balance of $187,500,000, evidenced by a
Mortgage Note designated as Note A-1, that is part of a loan pair comprised of
the 000 Xxxxx Xxxxxx Trust Mortgage Loan and another mortgage loan (such other
mortgage loan, the "666 Fifth Avenue Non-Trust Mortgage Loan"), both of which
are together secured by the same Mortgage encumbering the property identified on
the Trust Mortgage Loan Schedule as 000 Xxxxx Xxxxxx. The 000 Xxxxx Xxxxxx
Non-Trust Mortgage Loan, which is not included in the Trust Fund, has an unpaid
principal balance as of the Cut-off Date of $187,500,000, is evidenced by a
Mortgage Note designated as Note A-2 and is, as of the Closing Date, held by
Xxxxxx Brothers Holdings Inc. The 000 Xxxxx Xxxxxx Trust Mortgage Loan and the
000 Xxxxx Xxxxxx Non-Trust Mortgage Loan together constitute the "666 Fifth
Avenue Loan Pair". The relative rights of the holder of the 000 Xxxxx Xxxxxx
Trust Mortgage Loan and the holder of the 000 Xxxxx Xxxxxx Non-Trust Mortgage
Loan are set forth in a co-lender agreement dated as of April 7, 2004 (the "666
Fifth Avenue Co-Lender Agreement"), between the holder of the Mortgage Note for
the 000 Xxxxx Xxxxxx Trust Mortgage Loan and the holder of the Mortgage Note for
the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan. From and after the Closing Date,
the entire 000 Xxxxx Xxxxxx Loan Pair is to be serviced and administered in
accordance with this Agreement.
There exists one Trust Mortgage Loan (the "GIC Office Trust Mortgage
Loan"), with a Cut-off Date Balance of $150,000,000, evidenced by a Mortgage
Note designated as Note A-1B, that is part of a loan group comprised of the GIC
Office Trust Mortgage Loan and six other mortgage loans (such six other mortgage
loans, the "GIC Office Non-Trust Mortgage Loans"), all of which are together
secured by the same Mortgage(s) encumbering the office properties identified on
the Trust Mortgage Loan Schedule as GIC Office Portfolio (the "GIC Office
Mortgaged Properties"). The GIC Office Non-Trust Mortgage Loans, none of which
are included in the Trust Fund, consist of: (i) one mortgage loan (the "GIC
Office Note A-1A Non-Trust Mortgage Loan") that has an unpaid principal balance
as of the Cut-off Date of $200,000,000, is evidenced by a Mortgage Note
designated as Note A-1A and is, as of the Closing Date, together with various
other commercial and multifamily mortgage loans, included in a commercial
mortgage securitization (the "GIC Office 2004-C1 Securitization") involving the
issuance of the LB-UBS Commercial Mortgage Trust 2004-C1, Commercial Mortgage
Pass-Through Certificates, Series 2004-C1 (the "GIC Office 2004-C1
Certificates"); (ii) one mortgage loan (the "GIC Office Note A-2A Non-Trust
Mortgage Loan" that has an unpaid principal balance as of the Cut-off Date of
$90,000,000, is evidenced by a Mortgage Note designated as Note A-2A and is, as
of the Closing Date, together with various other commercial and multifamily
mortgage loans, included in a commercial mortgage securitization involving the
issuance of the Xxxxxx Xxxxxxx Capital I Trust 2004-TOP13, Commercial Mortgage
Pass-Through Certificates, Series 2004-TOP13; (iii) one mortgage loan (the "GIC
Office Note A-2B Non-Trust Mortgage Loan") that has an unpaid principal balance
as of the Cut-off Date of $110,000,000, is evidenced by a Mortgage Note
designated as Note A-2B and is, as of the Closing Date, together with various
other commercial and multifamily mortgage loans, included in a commercial
mortgage securitization involving the issuance of the Xxxxxx Xxxxxxx Capital I
Trust 2004-HQ3, Commercial Mortgage Pass-Through Certificates, Series 2004-HQ3;
(iv) one mortgage loan (the "GIC Office Note A-2C Non-Trust Mortgage Loan") that
has an unpaid principal balance as of the Cut-
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off Date of $85,000,000, is evidenced by a Mortgage Note designated as Note A-2C
and is, as of the Closing Date, held by Xxxxxx Xxxxxxx Mortgage Capital Inc.;
(v) one mortgage loan (the "GIC Office Note A-2D Non-Trust Mortgage Loan") that
has an unpaid principal balance as of the Cut-off Date of $65,000,000, is
evidenced by a Mortgage Note designated as Note A-2D and is, as of the Closing
Date, held by Xxxxxx Xxxxxxx Mortgage Capital Inc.; and (vi) one mortgage loan
(the "GIC Office Subordinate Non-Trust Mortgage Loan") that has an unpaid
principal balance as of the Cut-off Date of $125,000,000, is evidenced by a
Mortgage Note designated as Note B and is, as of the Closing Date, held by
Teachers Insurance and Annuity Association of America. The GIC Office Note A-1A
Non-Trust Mortgage Loan, the GIC Office Note A-2A Non-Trust Mortgage Loan, the
GIC Office Note A-2B Non-Trust Mortgage Loan, the GIC Office Note A-2C Non-Trust
Mortgage Loan and the GIC Office Note A-2D Non-Trust Mortgage Loan collectively
constitute the "GIC Office Pari Passu Non-Trust Mortgage Loans". The GIC Office
Pari Passu Non-Trust Mortgage Loans, the GIC Office Subordinate Non-Trust
Mortgage Loan and the GIC Office Trust Mortgage Loan collectively constitute the
"GIC Office Loan Group".
The relative rights of the holder of the GIC Office Trust Mortgage
Loan and the respective holders of the GIC Office Non-Trust Mortgage Loans are
set forth in a co-lender agreement dated as of December 10, 2003 (the "GIC
Office Co-Lender Agreement"), between the holder of the Mortgage Note for the
GIC Office Trust Mortgage Loan and each holder of a Mortgage Note for the GIC
Office Non-Trust Mortgage Loans. As of the Closing Date, the entire GIC Office
Loan Group is to be serviced and administered in accordance with the pooling and
servicing agreement, dated as of January 12, 2004 (together with any successor
servicing agreement provided for under the GIC Office Co-Lender Agreement, the
"GIC Office Servicing Agreement"), between Structured Asset Securities
Corporation II, as depositor, Wachovia Bank, National Association, as master
servicer (the "GIC Office Master Servicer"), Lennar Partners, Inc., as special
servicer (the "GIC Office Special Servicer"), LaSalle Bank National Association,
as trustee (in such capacity, the "GIC Office Trustee"), and ABN AMRO Bank N.V.,
as Fiscal Agent.
There exists another Trust Mortgage Loan (the "Somerset Collection
Trust Mortgage Loan"), with a Cut-off Date Balance of $125,500,000, evidenced by
a Mortgage Note designated as Note A-1, that is part of a loan group comprised
of the Somerset Collection Trust Mortgage Loan and two other mortgage loans
(such two other mortgage loans, the "Somerset Collection Non-Trust Mortgage
Loans"), all of which are together secured by the same Mortgage(s) encumbering
the property identified on the Trust Mortgage Loan Schedule as the Somerset
Collection. The Somerset Collection Non-Trust Mortgage Loans, none of which are
included in the Trust Fund, consist of: (i) one mortgage loan (the "Somerset
Collection Pari Passu Non-Trust Mortgage Loan") that has an unpaid principal
balance as of the Cut-off Date of $125,500,000, is evidenced by a Mortgage Note
designated as Note A-2 and is, as of the Closing Date, held by ABN AMRO Bank
N.V., Chicago Branch; and (ii) one mortgage loan (the "Somerset Collection
Subordinate Non-Trust Mortgage Loan") that has an unpaid principal balance as of
the Cut-off Date of $49,000,000, is evidenced by a Mortgage Note designated as
Note B and is, as of the Closing Date, held by Teachers Insurance and Annuity
Association of America. The Somerset Collection Mortgage Loan, the Somerset
Collection Pari Passu Non-Trust Mortgage Loan and the Somerset Collection
Subordinate Non-Trust Mortgage Loan collectively constitute the "Somerset
Collection Loan Group". The relative rights of the holder of the Somerset
Collection Trust Mortgage Loan and the respective holders of the Somerset
Collection Non-Trust Mortgage Loans are set forth in a co-lender agreement dated
as of February 9, 2004 (the "Somerset Collection Co-Lender Agreement"), between
the holder of the Mortgage Note for the Somerset Collection Trust Mortgage
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Loan and each holder of a Mortgage Note for the Somerset Collection Non-Trust
Mortgage Loans. From and after the Closing Date, the entire Somerset Collection
Loan Group is to be serviced and administered in accordance with this Agreement.
There exists another Trust Mortgage Loan (the "Xxxxxxxx Place Trust
Mortgage Loan"), with a Cut-off Date Balance of $20,500,000, evidenced by a
Mortgage Note designated as Note A, that is part of a loan pair comprised of the
Xxxxxxxx Place Trust Mortgage Loan and one other mortgage loan (such other
mortgage loan, the "Xxxxxxxx Place Non-Trust Mortgage Loan"), both of which are
secured by the same Mortgage encumbering the property identified on the Trust
Mortgage Loan Schedule as Xxxxxxxx Place Apartments. The Xxxxxxxx Place
Non-Trust Mortgage Loan, which is not included in the Trust Fund, has an
original principal balance of $2,500,000, is evidenced by a Mortgage Note
designated as Note B and is, as of the Closing Date, held by GDW Capital
Partners, LLC. The Xxxxxxxx Place Trust Mortgage Loan and the Xxxxxxxx Place
Non-Trust Mortgage Loan collectively constitute the "Xxxxxxxx Place Loan Pair".
The relative rights of the holder of the Xxxxxxxx Place Trust Mortgage Loan and
the holder of the Xxxxxxxx Place Non-Trust Mortgage Loan are set forth in an
intercreditor and servicing agreement dated as of February 26, 2004 (the
"Xxxxxxxx Place Intercreditor Agreement"), between the holder of the Mortgage
Note for the Xxxxxxxx Place Trust Mortgage Loan and the holder of the Mortgage
Note for the Xxxxxxxx Place Non-Trust Mortgage Loan. From and after the Closing
Date, the entire Xxxxxxxx Place Loan Pair is to be serviced and administered in
accordance with this Agreement.
There exists another Trust Mortgage Loan (the "Cumberland Place Trust
Mortgage Loan"), with a Cut-off Date Balance of $5,107,290, evidenced by a
Mortgage Note designated as Note A, that is part of a loan pair comprised of the
Cumberland Place Trust Mortgage Loan and one other mortgage loan (such other
mortgage loan, the "Cumberland Place Non-Trust Mortgage Loan"), both of which
are secured by the same Mortgage encumbering the property identified on the
Trust Mortgage Loan Schedule as Shops at Cumberland Place. The Cumberland Place
Non-Trust Mortgage Loan, which is not included in the Trust Fund, has an unpaid
principal balance as of the Cut-off Date of $195,000, is evidenced by a Mortgage
Note designated as Note B and is, as of the Closing Date, held by Anthracite
Capital, Inc. The Cumberland Place Mortgage Loan and the Cumberland Place
Non-Trust Mortgage Loan collectively constitute the "Cumberland Place Loan
Pair". The relative rights of the holder of the Cumberland Place Trust Mortgage
Loan and the holder of the Cumberland Place Non-Trust Mortgage Loan are set
forth in a co-lender agreement dated as of April 7, 2004, 2004 (the "Cumberland
Place Co-Lender Agreement"), between the holder of the Mortgage Note for the
Cumberland Place Trust Mortgage Loan and the holder of a Mortgage Note for the
Cumberland Place Non-Trust Mortgage Loan. From and after the Closing Date, the
entire Cumberland Place Loan Pair is to be serviced and administered in
accordance with this Agreement.
Accordingly, as and to the extent provided herein, (i) the 000 Xxxxx
Xxxxxx Non-Trust Mortgage Loan, the Somerset Collection Non-Trust Mortgage
Loans, the Xxxxxxxx Place Non-Trust Mortgage Loan and the Cumberland Place
Non-Trust Mortgage Loan, although not part of the Trust Fund, will be serviced
and administered in accordance with this Agreement, by the Master Servicer and
Special Servicer hereunder, and (ii) the GIC Office Trust Mortgage Loan,
although part of the Trust Fund, will be serviced and administered in accordance
with the GIC Office Servicing Agreement, by the GIC Office Master Servicer and
the GIC Office Special Servicer.
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Capitalized terms used but not otherwise defined in this Preliminary
Statement have the respective meanings assigned thereto in Section 1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee hereby
agree, in each case, as follows:
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN ADJUSTMENTS TO THE PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, unless the context otherwise requires:
"30/360 Basis" shall mean the accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"666 Fifth Avenue Co-Lender Agreement" shall have the meaning assigned
thereto in the Preliminary Statement.
"666 Fifth Avenue Custodial Account" shall mean the segregated account
or accounts created and maintained by the Master Servicer pursuant to Section
3.04A on behalf of the 000 Xxxxx Xxxxxx Noteholders, which shall be entitled
"[NAME OF MASTER SERVICER], as Master Servicer, in trust for [NAMES OF 000 XXXXX
XXXXXX NOTEHOLDERS], as their interests may appear".
"666 Fifth Avenue Loan Pair" shall have the meaning assigned thereto
in the Preliminary Statement (and shall include any successor REO Mortgage Loans
with respect to the 000 Xxxxx Xxxxxx Mortgage Loans).
"666 Fifth Avenue Master Servicer Remittance Date" shall mean the
"Remittance Date" under the 000 Xxxxx Xxxxxx Co-Lender Agreement.
"666 Fifth Avenue Mortgage Loan" shall mean the 000 Xxxxx Xxxxxx Trust
Mortgage Loan or the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan, as applicable.
"666 Fifth Avenue Mortgaged Property" shall mean the property
identified on the Trust Mortgage Loan Schedule as 000 Xxxxx Xxxxxx.
"666 Fifth Avenue Non-Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"666 Fifth Avenue Non-Trust Mortgage Loan Noteholder" shall mean the
holder of the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto).
"666 Fifth Avenue Non-Trust Mortgage Loan Securities" shall mean any
securities evidencing an interest in, or secured by, the 000 Xxxxx Xxxxxx
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto.
"666 Fifth Avenue Non-Trust Mortgage Loan Securitization Agreement"
shall mean any agreement governing the securitization of the 000 Xxxxx Xxxxxx
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto.
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"666 Fifth Avenue Non-Trust Mortgage Loan Securitization Trust" shall
mean any commercial mortgage securitization trust similar to the commercial
mortgage securitization trust contemplated by this Agreement, that from time to
time holds the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan or any successor REO
Mortgage Loan with respect thereto.
"666 Fifth Avenue Noteholders" shall mean, collectively, the holder of
the Mortgage Note for the 000 Xxxxx Xxxxxx Trust Mortgage Loan, together with
the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholder.
"666 Fifth Avenue REO Account" shall mean the segregated account or
accounts created and maintained by the Special Servicer pursuant to Section 3.16
on behalf of the 000 Xxxxx Xxxxxx Noteholders, which shall be entitled "[NAME OF
SPECIAL SERVICER], as Special Servicer, in trust for [NAMES OF 000 XXXXX XXXXXX
NOTEHOLDERS], as their interests may appear".
"666 Fifth Avenue REO Mortgage Loan" shall mean any REO Mortgage Loan
relating to a 000 Xxxxx Xxxxxx Mortgage Loan.
"666 Fifth Avenue REO Property" shall mean the 000 Xxxxx Xxxxxx
Mortgaged Property, at such time that it becomes an REO Property hereunder.
"666 Fifth Avenue REO Trust Mortgage Loan" shall mean any REO Trust
Mortgage Loan relating to the 000 Xxxxx Xxxxxx Trust Mortgage Loan.
"666 Fifth Avenue Specially Designated Servicing Actions" shall mean,
with respect to the 000 Xxxxx Xxxxxx Loan Pair or any related REO Property, any
of the actions specified in clauses (i) through (xiv) of Section 3.02(a) of the
000 Xxxxx Xxxxxx Co-Lender Agreement.
"666 Fifth Avenue Trust Mortgage Loan" shall have the meaning assigned
thereto in the Preliminary Statement, which mortgage loan is identified on the
Trust Mortgage Loan Schedule by loan number 1 and is, together with the 000
Xxxxx Xxxxxx Non-Trust Mortgage Loan, secured by the same Mortgage on the 000
Xxxxx Xxxxxx Mortgaged Property.
"Acceptable Insurance Default" shall mean, with respect to any
Serviced Mortgage Loan, any default under the related loan documents resulting
from (a) the exclusion of acts of terrorism from coverage under the related all
risk casualty insurance policy maintained on the subject Mortgaged Property and
(b) the related Mortgagor's failure to obtain insurance that specifically covers
acts of terrorism, but only if the Special Servicer has determined, in its
reasonable judgment after due inquiry (subject to Section 6.11, Section 6.12,
Section 6.13, Section 6.14 and/or Section 6.15, in each case if and as
applicable), that (i) such insurance is not available at commercially reasonable
rates and the subject hazards are not commonly insured against at the time for
real properties similar to the subject Mortgaged Property and located in and
around the region in which the subject Mortgaged Property is located, or (ii)
such insurance is not available at any rate. Subject to the Servicing Standard,
in making any of the determinations under and in accordance with subclause (i)
or (ii) of this definition, the Special Servicer shall be entitled to reasonably
rely on the opinion of an insurance consultant.
"Accrued Certificate Interest" shall mean the interest accrued from
time to time with respect to any Class of Regular Interest Certificates, the
amount of which interest shall equal: (a) in the case of any Class of Principal
Balance Certificates for any Interest Accrual Period, one-twelfth of the
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product of (i) the annual Pass-Through Rate applicable to such Class of
Certificates for such Interest Accrual Period, multiplied by (ii) the Class
Principal Balance of such Class of Certificates outstanding immediately prior to
the related Distribution Date; and (b) in the case of either Class of
Interest-Only Certificates for any Interest Accrual Period, the aggregate amount
of Accrued Component Interest for all of such Class' REMIC III Components for
such Interest Accrual Period. The Regular Interest Certificates shall accrue
interest on a 30/360 Basis.
"Accrued Component Interest" shall mean the interest accrued from time
to time with respect to any REMIC III Component of the Class X-CL or Class X-CP
Certificates, the amount of which interest shall equal, for any Interest Accrual
Period, one-twelfth of the product of (i) the annual Pass-Through Rate
applicable to such REMIC III Component for such Interest Accrual Period,
multiplied by (ii) the Component Notional Amount of such REMIC III Component
outstanding immediately prior to the related Distribution Date. Each REMIC III
Component of the Class X-CL or Class X-CP Certificates shall accrue interest on
a 30/360 Basis.
"Acquisition Date" shall mean, with respect to any REO Property, the
first day on which such REO Property or any interest therein is considered to be
acquired by (or, in the case of the GIC Office Mortgaged Properties, acquired
for the benefit of) the Trust Fund within the meaning of Treasury regulations
section 1.856-6(b)(1), which shall be the first day on which the Trust Fund is
treated as the owner of such REO Property or an interest therein for federal
income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest calculated on
the basis of the actual number of days elapsed during any interest accrual
period in a year assumed to consist of 360 days.
"Additional Designated Servicing Information" shall have the meaning
assigned thereto in Section 8.15(a).
"Additional Information" shall have the meaning assigned thereto in
Section 4.02(a).
"Additional Interest" shall mean, with respect to any ARD Mortgage
Loan after its Anticipated Repayment Date, all interest accrued on the principal
balance of such ARD Mortgage Loan at the Additional Interest Rate and, if so
provided in the related loan documents, compounded at the related Mortgage Rate
(the payment of which interest shall, under the terms of such ARD Mortgage Loan,
be deferred until the entire outstanding principal balance thereof has been
paid). For purposes of this Agreement, Additional Interest on an ARD Mortgage
Loan or any successor REO Mortgage Loan with respect thereto shall be deemed not
to constitute principal or any portion thereof and shall not be added to the
unpaid principal balance or Stated Principal Balance of such ARD Mortgage Loan
or any successor REO Mortgage Loan with respect thereto, notwithstanding that
the terms of the related loan documents so permit. To the extent that any
Additional Interest is not paid on a current basis, it shall, for purposes of
this Agreement, be deemed to be deferred interest (regardless of whether it is
added to principal outstanding with respect to the related ARD Mortgage Loan in
accordance with the related loan documents).
"Additional Interest Rate" shall mean, with respect to any ARD
Mortgage Loan after its Anticipated Repayment Date, the incremental increase in
the Mortgage Rate for such loan resulting from the passage of such Anticipated
Repayment Date.
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"Additional Trust Fund Expense" shall mean any expense that: (i) is
incurred with respect to the Trust Fund; (ii) is not otherwise included in the
calculation of a Realized Loss in respect of any particular Trust Mortgage Loan
or REO Trust Mortgage Loan; and (iii) would result or has resulted, as the case
may be, in the Holders of Regular Interest Certificates receiving less than the
full amount of principal and/or Distributable Certificate Interest to which they
are entitled on any Distribution Date.
"Adjusted Actual/360 Accrued Interest Amount" shall mean, with respect
to any REMIC I Regular Interest that relates to an Interest Reserve Mortgage
Loan or an Interest Reserve REO Mortgage Loan, for any Interest Accrual Period,
an amount of interest equal to the product of (a) the Mortgage Rate in effect
for the related Trust Mortgage Loan as of the Closing Date (without regard to
any modifications, extensions, waivers or amendments of the related Trust
Mortgage Loan subsequent to the Closing Date and, solely in the case of the GIC
Office Trust Mortgage Loan, reduced by the product of (i) 0.015% and (ii) a
fraction, expressed as a percentage, the numerator of which is 30, and the
denominator of which is the number of days in such Interest Accrual Period),
multiplied by (b) a fraction, the numerator of which is the number of days in
such Interest Accrual Period, and the denominator of which is 360, multiplied by
(c) the Uncertificated Principal Balance of such REMIC I Regular Interest
immediately prior to the Distribution Date that corresponds to such Interest
Accrual Period; provided that, if the subject Interest Accrual Period ends
during (x) January of 2005 or any year thereafter that is not a leap year or (y)
February of 2005 or any year thereafter, then the amount of interest calculated
with respect to any particular REMIC I Regular Interest pursuant to this
definition for such Interest Accrual Period without regard to this proviso shall
be decreased by the Interest Reserve Amount, if any, with respect to the related
Interest Reserve Mortgage Loan or Interest Reserve REO Mortgage Loan, as the
case may be, transferred (in accordance with Section 3.04(c)) from the
Collection Account to the Interest Reserve Account in the calendar month in
which such Interest Accrual Period ends; and provided, further, that, if the
subject Interest Accrual Period ends during March of 2005 or any year
thereafter, then the amount calculated with respect to any particular REMIC I
Regular Interest pursuant to this definition for such Interest Accrual Period
without regard to this proviso shall be increased by the Interest Reserve
Amount(s), if any, with respect to the related Interest Reserve Mortgage Loan or
Interest Reserve REO Mortgage Loan, as the case may be, transferred (in
accordance with Section 3.05(c)) from the Interest Reserve Account to the
Collection Account in the calendar month in which such Interest Accrual Period
ends.
"Adjusted Principal Distribution Amount" shall mean, for any
Distribution Date, an amount equal to the Principal Distribution Amount for such
Distribution Date, plus all amounts added to such Principal Distribution Amount
pursuant to Section 1.03(c) for such Distribution Date, minus all amounts
subtracted from such Principal Distribution Amount pursuant to Section 1.03(b)
for such Distribution Date.
"Adjusted REMIC II Remittance Rate" shall mean:
(a) with respect to REMIC II Regular Interest A-1-1, for any Interest
Accrual Period, 2.946% per annum;
(b) with respect to REMIC II Regular Interest A-1-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in March 2005, an annual rate equal to the
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Reference Rate for the subject Interest Accrual Period, and (ii) for any
Interest Accrual Period subsequent to the Interest Accrual Period ending in
March 2005, 2.946% per annum;
(c) with respect to REMIC II Regular Interest A-1-3, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in March 2006, an annual rate equal to the Reference Rate for the
subject Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in March 2006, 2.946% per
annum;
(d) with respect to REMIC II Regular Interest A-2-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in March 2006, an annual rate equal to the Reference Rate for the
subject Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in March 2006, 3.246% per
annum;
(e) with respect to REMIC II Regular Interest A-2-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in March 2007, an annual rate equal to the Reference Rate for the
subject Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in March 2007, 3.246% per
annum;
(f) with respect to REMIC II Regular Interest A-2-3, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in March 2008, an annual rate equal to the Reference Rate for the
subject Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in March 2008, 3.246% per
annum;
(g) with respect to REMIC II Regular Interest A-2-4, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in October 2008, an annual rate equal to the Reference Rate for the
subject Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in October 2008, 3.246%
per annum;
(h) with respect to REMIC II Regular Interest A-3-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in October 2008, an annual rate equal to the Reference Rate for the
subject Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in October 2008, 3.973%
per annum;
(i) with respect to REMIC II Regular Interest A-3-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in March 2010, an annual rate equal to the Reference Rate for the
subject Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in March 2010, 3.973% per
annum;
(j) with respect to REMIC II Regular Interest A-4-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in March 2010, an annual rate equal to the
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Reference Rate for the subject Interest Accrual Period, and (ii) for any
Interest Accrual Period subsequent to the Interest Accrual Period ending in
March 2010, 4.367% per annum;
(k) with respect to REMIC II Regular Interest A-4-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in March 2011, an annual rate equal to the Reference Rate for the
subject Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in March 2011, 4.367% per
annum;
(l) with respect to REMIC II Regular Interest B, (i) for any Interest
Accrual Period from and including the Interest Accrual Period ending in
April 2004 through and including the Interest Accrual Period ending in
March 2011, an annual rate equal to the Reference Rate for the subject
Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in March 2011, 4.427% per
annum;
(m) with respect to REMIC II Regular Interest C, (i) for any Interest
Accrual Period from and including the Interest Accrual Period ending in
April 2004 through and including the Interest Accrual Period ending in
March 2011, an annual rate equal to the Reference Rate for the subject
Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in March 2011, 4.437% per
annum;
(n) with respect to REMIC II Regular Interest D, (i) for any Interest
Accrual Period from and including the Interest Accrual Period ending in
April 2004 through and including the Interest Accrual Period ending in
March 2011, an annual rate equal to the Reference Rate for the subject
Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in March 2011, 4.457% per
annum;
(o) with respect to REMIC II Regular Interest E-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in March 2010, an annual rate equal to the Reference Rate for the
subject Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in March 2010, 4.487% per
annum;
(p) with respect to REMIC II Regular Interest E-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in March 2011, an annual rate equal to the Reference Rate for the
subject Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in March 2011, 4.487% per
annum;
(q) with respect to REMIC II Regular Interest F-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in October 2008, an annual rate equal to the Reference Rate for the
subject Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in October 2008, an annual
rate equal to the lesser of (X) the Weighted Average REMIC I Remittance
Rate for the subject Interest Accrual Period and (Y) 4.506% per annum;
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(r) with respect to REMIC II Regular Interest F-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in March 2010, an annual rate equal to the Reference Rate for the
subject Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in March 2010, an annual
rate equal to the lesser of (X) the Weighted Average REMIC I Remittance
Rate for the subject Interest Accrual Period and (Y) 4.506% per annum;
(s) with respect to REMIC II Regular Interest G-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in March 2008, an annual rate equal to the Reference Rate for the
subject Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in March 2008, an annual
rate equal to the lesser of (X) the Weighted Average REMIC I Remittance
Rate for the subject Interest Accrual Period and (Y) 4.595% per annum;
(t) with respect to REMIC II Regular Interest G-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in October 2008, an annual rate equal to the Reference Rate for the
subject Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in October 2008, an annual
rate equal to the lesser of (X) the Weighted Average REMIC I Remittance
Rate for the subject Interest Accrual Period and (Y) 4.595% per annum;
(u) with respect to REMIC II Regular Interest H-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in March 2007, an annual rate equal to the Reference Rate for the
subject Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in March 2007, an annual
rate equal to the lesser of (X) the Weighted Average REMIC I Remittance
Rate for the subject Interest Accrual Period and (Y) 4.743% per annum;
(v) with respect to REMIC II Regular Interest H-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in April 2004 through and including the Interest Accrual Period
ending in March 2008, an annual rate equal to the Reference Rate for the
subject Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in March 2008, an annual
rate equal to the lesser of (X) the Weighted Average REMIC I Remittance
Rate for the subject Interest Accrual Period and (Y) 4.743% per annum;
(w) with respect to REMIC II Regular Interest J, (i) for any Interest
Accrual Period from and including the Interest Accrual Period ending in
April 2004 through and including the Interest Accrual Period ending in
March 2007, an annual rate equal to the Reference Rate for the subject
Interest Accrual Period, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period ending in March 2007, an annual
rate equal to the lesser of (X) the Weighted Average REMIC I Remittance
Rate for the subject Interest Accrual Period and (Y) 4.841% per annum;
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(x) with respect to REMIC II Regular Interest K, for any Interest
Accrual Period, an annual rate equal to the Weighted Average REMIC I
Remittance Rate for the subject Interest Accrual Period, minus 0.192%; and
(y) with respect to each of REMIC II Regular Interest L, REMIC II
Regular Interest M, REMIC II Regular Interest N, REMIC II Regular Interest
P, REMIC II Regular Interest Q, REMIC II Regular Interest S and REMIC II
Regular Interest T, for any Interest Accrual Period, an annual rate equal
to the lesser of (i) the Weighted Average REMIC I Remittance Rate for the
subject Interest Accrual Period, and (ii) 4.716% per annum.
"Administered REO Property" shall mean any REO Property other than, if
applicable, any GIC Office REO Property.
"Administrative Cost Rate" shall mean, with respect to (a) the GIC
Office Trust Mortgage Loan (or any GIC Office REO Trust Mortgage Loan), the sum
of (i) 0.015% per annum, (ii) the Trustee Fee Rate, and (iii) the Master
Servicing Fee Rate; and (b) each other Trust Mortgage Loan (or any successor REO
Trust Mortgage Loan with respect thereto), the rate per annum specified as the
"Administrative Cost Rate" on the Trust Mortgage Loan Schedule, which, for each
such Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with respect
thereto), is equal to the sum of the related Master Servicing Fee Rate and the
Trustee Fee Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event" shall mean any endangerment to the
status of Grantor Trust V as a grantor trust under the Grantor Trust Provisions
or any imposition of a tax on Grantor Trust V or any of its assets or
transactions.
"Adverse Rating Event" shall mean: (i) with respect to any Class of
Certificates, as of any date of determination, the qualification, downgrade or
withdrawal of any rating then assigned to such Class of Certificates by either
Rating Agency; and (ii) with respect to any class of Pari Passu Non-Trust
Mortgage Loan Securities, as of any date of determination, the qualification,
downgrade or withdrawal of any rating then assigned to such securities by any
nationally recognized statistical rating organization then rating such
securities.
"Adverse REMIC Event" shall mean, with respect to any REMIC Pool, any
endangerment of the status of such REMIC Pool as a REMIC under the REMIC
Provisions or, except as permitted by Section 3.17(a), any imposition of a tax
on such REMIC Pool or any of its assets or transactions (including the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code, the tax on
prohibited contributions set forth in Section 860G(d) of the Code and/or the tax
on "net income from foreclosure property" as defined in Section 860G(c) of the
Code).
"Affiliate" shall mean, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control", when used with
respect to any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
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"Agreement" shall mean this Pooling and Servicing Agreement, together
with all amendments hereof and supplements hereto.
"Alternative Adjusted REMIC II Remittance Rate" shall mean, with
respect to any REMIC II Regular Interest, for any Interest Accrual Period, an
annual rate equal to the Pass-Through Rate in effect during such Interest
Accrual Period for the Class of Principal Balance Certificates as to which such
REMIC II Regular Interest is the sole Corresponding REMIC II Regular Interest or
is one of the Corresponding REMIC II Regular Interests, as applicable.
"Annual Accountants' Report" shall have the meaning assigned thereto
in Section 3.14
"Annual Performance Certification" shall have the meaning assigned
thereto in Section 3.13.
"Anticipated Repayment Date" shall mean, with respect to any ARD
Mortgage Loan, the date specified in the related Mortgage Note after which the
Mortgage Rate for such ARD Mortgage Loan will increase as specified in the
related Mortgage Note.
"Appraisal Reduction Amount" shall mean, with respect to any Required
Appraisal Loan, an amount (calculated initially as of the applicable
Determination Date immediately following the later of the date on which the
subject Serviced Trust Mortgage Loan or Serviced Loan Combination, as
applicable, became a Required Appraisal Loan and the date on which the
applicable Required Appraisal was obtained and thereafter as of each subsequent
applicable Determination Date during the period that the subject Serviced Trust
Mortgage Loan, REO Trust Mortgage Loan or Serviced Loan Combination, as
applicable, remains a Required Appraisal Loan) equal to the excess, if any, of:
(a) the sum of, without duplication, (i) the Stated Principal Balance of such
Required Appraisal Loan, (ii) to the extent not previously advanced by or on
behalf of the Master Servicer, the Trustee or any Fiscal Agent, all unpaid
interest on such Required Appraisal Loan through the most recent Due Date prior
to the date of calculation (exclusive of any portion thereof that represents
Additional Interest and/or Default Interest), (iii) all accrued and unpaid
Special Servicing Fees, Liquidation Fees and Workout Fees in respect of such
Required Appraisal Loan, (iv) all related unreimbursed Advances made by or on
behalf of (plus all accrued interest on such Advances payable to) the Master
Servicer and/or any other party hereto with respect to such Required Appraisal
Loan, (v) any other unpaid Additional Trust Fund Expenses in respect of such
Required Appraisal Loan, (vi) all currently due and unpaid real estate taxes and
assessments, insurance premiums and, if applicable, ground rents, and any
unfunded improvement or other applicable reserves, in respect of the related
Mortgaged Property or REO Property, as the case may be (in each case, net of any
amounts escrowed with the Master Servicer or the Special Servicer for such
items), and (vii) if applicable, (A) in the case of the 000 Xxxxx Xxxxxx Loan
Pair, to the extent known to the Special Servicer, any and all interest accrued
on delinquency advances comparable to P&I Advances made in respect of the 000
Xxxxx Xxxxxx Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with
respect thereto) that is payable under any 000 Xxxxx Xxxxxx Non-Trust Mortgage
Loan Securitization Agreement and (B) in the case of the Somerset Collection
Loan Group, to the extent known to the Special Servicer, any and all interest
accrued on delinquency advances comparable to P&I Advances made in respect of
the Somerset Collection Pari Passu Non-Trust Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto) that is payable under any Somerset
Collection Pari Passu Non-Trust Mortgage Loan Securitization Agreement; over (b)
the Required Appraisal Value. Notwithstanding the foregoing, if (i) any Serviced
Trust Mortgage Loan or Serviced Loan Combination
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becomes a Required Appraisal Loan, (ii) either (A) no Required Appraisal or
update thereof has been obtained or conducted, as applicable, in accordance with
Section 3.09(a), with respect to the related Mortgaged Property during the
12-month period prior to the date such Serviced Trust Mortgage Loan or Serviced
Loan Combination, as the case may be, became a Required Appraisal Loan or (B)
there shall have occurred since the date of the most recent Required Appraisal
or update thereof a material change in the circumstances surrounding the related
Mortgaged Property that would, in the Special Servicer's reasonable judgment,
materially affect the value of the related Mortgaged Property, and (iii) no new
Required Appraisal is obtained or conducted, as applicable, in accordance with
Section 3.09(a), within 60 days after such Serviced Trust Mortgage Loan or
Serviced Loan Combination, as the case may be, became a Required Appraisal Loan,
then (x) until such new Required Appraisal or update is obtained or conducted,
as applicable, in accordance with Section 3.09(a), the Appraisal Reduction
Amount shall equal 25% of the Stated Principal Balance of such Required
Appraisal Loan, and (y) upon receipt or performance, as applicable, in
accordance with Section 3.09(a), of such Required Appraisal or update thereof by
the Special Servicer, the Appraisal Reduction Amount for such Required Appraisal
Loan shall be recalculated in accordance with the preceding sentence of this
definition. For purposes of this definition, each Required Appraisal Loan that
is part of a Cross-Collateralized Group shall be treated separately for the
purposes of calculating any Appraisal Reduction Amount.
Each Appraisal Reduction Amount shall be reduced to zero as of the
date the subject Serviced Trust Mortgage Loan or Serviced Loan Combination, as
applicable, ceases to be a Required Appraisal Loan, and no Appraisal Reduction
Amount shall exist as to any Serviced Trust Mortgage Loan (or any successor REO
Trust Mortgage Loan with respect thereto) or any Serviced Loan Combination after
it has been paid in full, liquidated, repurchased or otherwise disposed of.
Any Appraisal Reduction Amount with respect to a Serviced Loan
Combination shall be calculated, and allocated among the respective mortgage
loans comprising the subject Serviced Loan Combination, by the Master Servicer
pursuant to this Agreement and consistent with the related Co-Lender Agreement;
and the related Serviced Non-Trust Mortgage Loan Noteholder(s) shall be entitled
to rely on such calculations, and the allocations to the subject Non-Trust
Mortgage Loan(s) or any successor REO Trust Mortgage Loan(s) with respect
thereto, as reported to it or them by the Master Servicer.
Notwithstanding the foregoing, any "Appraisal Reduction Amount" (as
defined under the GIC Office Servicing Agreement) with respect to the GIC Office
Loan Group shall be calculated, and allocated among the respective mortgage
loans comprising the GIC Office Loan Group, by the applicable GIC Office
Servicer pursuant to the GIC Office Servicing Agreement; and the parties hereto
shall be entitled to rely on such calculations, and the allocations to the GIC
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, as reported to them by the applicable GIC Office Servicer.
"Appraised Value" shall mean, with respect to each Mortgaged Property
or REO Property, the appraised value thereof based upon the most recent
appraisal or update thereof prepared by an Independent Appraiser that is
contained in the related Servicing File or, in the case of any such property
with or that had, as the case may be, an allocated loan amount of, or securing a
Trust Mortgage Loan or relating to an REO Trust Mortgage Loan, as the case may
be, with a Stated Principal Balance of, less than $2,000,000, either (a) the
most recent appraisal or update thereof that is contained in the
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related Servicing File or (b) the most recent "desktop" value estimate performed
by the Special Servicer that is contained in the related Servicing File.
"ARD Mortgage Loan" shall mean any Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto) that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan (or successor REO Mortgage Loan) will accrue additional interest
at the rate specified in the related Mortgage Note and the related Mortgagor is
required to apply certain excess monthly cash flow generated by the related
Mortgaged Property to the repayment of the outstanding principal balance on such
Mortgage Loan.
"ARD Trust Mortgage Loan" shall mean any Trust Mortgage Loan that is
an ARD Mortgage Loan.
"Assignment of Leases" shall mean, with respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar document or
instrument executed by the Mortgagor in connection with the origination of the
related Mortgage Loan.
"Assumed Monthly Payment" shall mean: (a) with respect to any Balloon
Mortgage Loan delinquent in respect of its Balloon Payment, for each Due Date
coinciding with or following its Stated Maturity Date as of which such Mortgage
Loan remains outstanding and part of the Trust Fund (or, in the case of a
Serviced Non-Trust Mortgage Loan, if applicable, as of which such Non-Trust
Mortgage Loan remains outstanding and the related Trust Mortgage Loan remains
part of the Trust Fund) (provided that such Mortgage Loan was not paid in full,
and no other Liquidation Event occurred in respect thereof, before the end of
the Collection Period in which the related Stated Maturity Date occurs), the
scheduled monthly payment of principal and/or interest deemed to be due in
respect of such Mortgage Loan on such Due Date equal to the amount that would
have been due in respect thereof on such Due Date if such Mortgage Loan had been
required to continue to accrue interest (other than Default Interest) in
accordance with its terms, and to pay principal in accordance with the
amortization schedule (if any), in effect immediately prior to, and without
regard to the occurrence of, the related Stated Maturity Date; and (b) with
respect to any REO Mortgage Loan, for any Due Date as of which the related REO
Property (or any interest therein) (or, in the case of any GIC Office REO Trust
Mortgage Loan, any interest in the related REO Property)remains part of the
Trust Fund, the scheduled monthly payment of principal and/or interest deemed to
be due in respect thereof on such Due Date equal to the Monthly Payment (or, in
the case of a Balloon Mortgage Loan described in clause (a) of this definition,
the Assumed Monthly Payment) that was due (or deemed due) in respect of the
related Mortgage Loan on the last Due Date prior to its becoming an REO Mortgage
Loan.
"ASTM" shall mean the American Society for Testing and Materials.
"Authenticating Agent" shall mean any authenticating agent appointed
pursuant to Section 8.12 (or, in the absence of any such appointment, the
Trustee).
"Available Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to:
(a) the sum, without duplication, of (i) the aggregate amount of all
payments and other collections on or with respect to the Trust Mortgage
Loans and any REO Properties that (A) were Received by the Trust as of the
end of the related Collection Period and (B) are on
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deposit in the Collection Account as of 12:00 noon (New York City time) on
such Distribution Date, (ii) the aggregate amount of any P&I Advances made
by the Master Servicer, the Trustee and/or any Fiscal Agent with respect to
the Mortgage Pool for distribution on the Certificates on such Distribution
Date pursuant to Section 4.03, (iii) the aggregate amount deposited by the
Master Servicer in the Collection Account for such Distribution Date
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls on the Mortgage Pool, (iv) to the extent not included in the
amount described in clause (a)(i) of this definition, the aggregate amount
transferred from the Excess Liquidation Proceeds Account to the Collection
Account pursuant to Section 3.05(d) in respect of such Distribution Date,
and (v) to the extent not included in the amount described in clause (a)(i)
of this definition, if such Distribution Date occurs during March of 2005
or any year thereafter, the aggregate of the Interest Reserve Amounts
transferred from the Interest Reserve Account to the Collection Account in
respect of the Interest Reserve Mortgage Loans and any Interest Reserve REO
Mortgage Loans for distribution on such Distribution Date; net of
(b) the portion of the aggregate amount described in clause (a) of
this definition that represents one or more of the following--(i) Monthly
Payments that are due on a Due Date following the end of the calendar month
in which such Distribution Date occurs, (ii) any amounts payable or
reimbursable to any Person from the Collection Account pursuant to clauses
(ii) through (v) and (viii) of Section 3.05(b), (iii) Prepayment Premiums,
Yield Maintenance Charges and/or Additional Interest, (iv) if such
Distribution Date occurs during January of 2005 or any year thereafter that
is not a leap year or during February of 2005 or any year thereafter, the
Interest Reserve Amounts with respect to the Interest Reserve Mortgage
Loans and any Interest Reserve REO Mortgage Loans to be withdrawn from the
Collection Account and deposited into the Interest Reserve Account in
respect of such Distribution Date and held for future distribution, all
pursuant to Section 3.04(c), and (v) amounts deposited in the Collection
Account in error; provided that the Available Distribution Amount for the
Final Distribution Date shall consist of all amounts on deposit in the
Collection Account as of the time distributions are to be made to
Certificateholders on the Final Distribution Date, exclusive of any portion
of such amounts that are payable or reimbursable to any Person from the
Collection Account pursuant to clauses (ii) through (v) of Section 3.05(b),
and further exclusive of any portion of such amounts deposited in the
Collection Account in error.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that by its
original terms or by virtue of any modification entered into as of the Closing
Date provides for an amortization schedule extending beyond its Stated Maturity
Date and as to which, in accordance with such terms, the Scheduled Payment due
on its Stated Maturity Date is significantly larger than the Scheduled Payment
due on the Due Date next preceding its Stated Maturity Date.
"Balloon Payment" shall mean, with respect to any Balloon Mortgage
Loan as of any date of determination, the payment, other than any regularly
scheduled monthly payment, due with respect to such Mortgage Loan at maturity.
"Balloon Trust Mortgage Loan" shall mean any Trust Mortgage Loan that
is a Balloon Mortgage Loan.
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"Book-Entry Certificate" shall mean any Certificate registered in the
name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any Non-Registered
Certificate that constitutes a Book-Entry Certificate.
"Book-Entry Subordinate Certificate" shall mean any Subordinate
Certificate that constitutes a Book-Entry Certificate.
"Breach" shall have the meaning assigned thereto in Section 2.03(a).
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York, or in any of the cities
in which the Corporate Trust Office of the Trustee, the Primary Servicing Office
of the Master Servicer or the Primary Servicing Office of the Special Servicer
are located, are authorized or obligated by law or executive order to remain
closed.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the LB-UBS Commercial Mortgage
Trust 2004-C2, Commercial Mortgage Pass-Through Certificates, Series 2004-C2, as
executed by the Certificate Registrar and authenticated and delivered hereunder
by the Authenticating Agent.
"Certificate Factor" shall mean, with respect to any Class of Regular
Interest Certificates, as of any date of determination, a fraction, expressed as
a decimal carried to six places, the numerator of which is the then current
Class Principal Balance or Class Notional Amount, as the case may be, of such
Class of Regular Interest Certificates, and the denominator of which is the
Original Class Principal Balance or Original Class Notional Amount, as the case
may be, of such Class of Regular Interest Certificates.
"Certificate Notional Amount" shall mean, with respect to any
Interest-Only Certificate, as of any date of determination, the then notional
amount of such Certificate equal to the product of (a) the then Certificate
Factor for the Class of Interest-Only Certificates to which such Certificate
belongs, multiplied by (b) the amount specified on the face of such Certificate
as the initial Certificate Notional Amount thereof.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Certificate as
reflected on the books of the Depository or on the books of a Depository
Participant or on the books of an indirect participating brokerage firm for
which a Depository Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to any
Principal Balance Certificate, as of any date of determination, the then
outstanding principal balance of such Certificate equal to the product of (a)
the then Certificate Factor for the Class of Principal Balance Certificates to
which such Certificate belongs, multiplied by (b) the amount specified on the
face of such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" shall mean the register maintained pursuant to
Section 5.02.
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"Certificate Registrar" shall mean the registrar appointed pursuant to
Section 5.02.
"Certificateholder" shall mean the Person in whose name a Certificate
is registered in the Certificate Register, except that: (i) neither a
Disqualified Organization nor a Disqualified Non-United States Tax Person shall
be Holder of a Residual Interest Certificate for any purpose hereof; and (ii)
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement that relates to the rights and/or obligations of any of the
Depositor, the Master Servicer, the Special Servicer, any Fiscal Agent or the
Trustee in its respective capacity as such, any Certificate registered in the
name of the Depositor, the Master Servicer, the Special Servicer, any Fiscal
Agent or the Trustee, as the case may be, or any Certificate registered in the
name of any of its Affiliates, shall be deemed not to be outstanding, and the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver that relates to it has been
obtained. The Certificate Registrar shall be entitled to request and rely upon a
certificate of the Depositor, the Master Servicer or the Special Servicer in
determining whether a Certificate is registered in the name of an Affiliate of
such Person. All references herein to "Certificateholders" shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights through
the Depository and the Depository Participants, except as otherwise specified
herein; provided, however, that the parties hereto shall be required to
recognize as a "Certificateholder" only the Person in whose name a Certificate
is registered in the Certificate Register.
"Certificateholder Reports" shall mean, collectively, the Distribution
Date Statement, the Mortgage Pool Data Update Report, the Loan Payoff
Notification Report, the CMSA Investor Reporting Package and any reports
comparable to the foregoing with respect to the GIC Office Trust Mortgage Loan
or a GIC Office REO Property that are deliverable under the GIC Office Servicing
Agreement to the Master Servicer on behalf of the Trustee as holder of the
Mortgage Note for the GIC Office Trust Mortgage Loan..
"Certifying Officer" shall have the meaning assigned thereto in
Section 8.15(d).
"Certifying Party" shall have the meaning assigned thereto in Section
8.15(d).
"Class" shall mean, collectively, all of the Certificates bearing the
same alphabetic or alphanumeric, as applicable, class designation.
"Class A Certificates" shall mean the Class A-1, Class A-2, Class A-3
and Class A-4 Certificates.
"Class A-1 Certificate" shall mean any one of the Certificates with a
"Class A-1" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-2 Certificate" shall mean any one of the Certificates with a
"Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-3 Certificate" shall mean any one of the Certificates with a
"Class A-3" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
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"Class A-4 Certificate" shall mean any one of the Certificates with a
"Class A-4" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A Principal Distribution Cross-Over Date" shall mean the first
Distribution Date as of the commencement of business on which (i) the Class A-1,
Class A-2, Class A-3 and Class A-4 Certificates, or any two or more of such
Classes, remain outstanding and (ii) the aggregate of the Class Principal
Balances of the Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class P, Class Q, Class S and Class
T Certificates has been reduced to zero as a result of the allocation of
Realized Losses and Additional Trust Fund Expenses pursuant to Section 4.04(a).
"Class B Certificate" shall mean any one of the Certificates with a
"Class B" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class C Certificate" shall mean any one of the Certificates with a
"Class C" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class D Certificate" shall mean any one of the Certificates with a
"Class D" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class E Certificate" shall mean any one of the Certificates with a
"Class E" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class F Certificate" shall mean any one of the Certificates with a
"Class F" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class G Certificate" shall mean any one of the Certificates with a
"Class G" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class H Certificate" shall mean any of the Certificates with a "Class
H" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class J Certificate" shall mean any one of the Certificates with a
"Class J" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class K Certificate" shall mean any of the Certificates with a "Class
K" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
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"Class L Certificate" shall mean any of the Certificates with a "Class
L" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class M Certificate" shall mean any of the Certificates with a "Class
M" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class N Certificate" shall mean any of the Certificates with a "Class
N" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Notional Amount" shall mean the aggregate hypothetical or
notional amount on which a Class of Interest-Only Certificates accrues or is
deemed to accrue interest from time to time. As of any date of determination,
the Class Notional Amount of each Class of Interest-Only Certificates shall
equal the then aggregate of the Component Notional Amounts of all the REMIC III
Components of such Class of Interest-Only Certificates; provided that, for
reporting purposes, the Class Notional Amount of the Class X-CP Certificates
shall be calculated in accordance with the Prospectus Supplement.
"Class P Certificate" shall mean any of the Certificates with a "Class
P" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Principal Balance" shall mean the aggregate principal balance
outstanding from time to time of any Class of Principal Balance Certificates. As
of the Closing Date, the Class Principal Balance of each Class of Principal
Balance Certificates shall equal the Original Class Principal Balance thereof.
On each Distribution Date, the Class Principal Balance of each Class of
Principal Balance Certificates shall be permanently reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01 or 9.01, as applicable, and shall be further permanently reduced
(subject to Section 4.05) by the amount of any Realized Losses and Additional
Trust Fund Expenses deemed allocated thereto on such Distribution Date pursuant
to Section 4.04. On each Distribution Date, the Class Principal Balance of each
Class of Principal Balance Certificates shall be increased by the related Class
Principal Reinstatement Amount, if any, for such Distribution Date.
"Class Principal Reinstatement Amount" shall have the meaning assigned
thereto in Section 4.05(a).
"Class Q Certificate" shall mean any of the Certificates with a "Class
Q" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class R-I Certificate" shall mean any one of the Certificates with a
"Class R-I" designation on the face thereof, substantially in the form of
Exhibit A-5 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC I for purposes of the REMIC Provisions.
"Class R-II Certificate" shall mean any one of the Certificates with a
"Class R-II" designation on the face thereof, substantially in the form of
Exhibit A-5 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC II for purposes of the REMIC Provisions.
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"Class R-III Certificate" shall mean any one of the Certificates with
a "Class R-III" designation on the face thereof, substantially in the form of
Exhibit A-5 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC III for purposes of the REMIC Provisions.
"Class S Certificate" shall mean any of the Certificates with a "Class
S" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class T Certificate" shall mean any of the Certificates with a "Class
T" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class V Certificate" shall mean any of the Certificates with a "Class
V" designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a pro rata undivided interest in Grantor Trust
V.
"Class V Sub-Account" shall mean a sub-account of the Collection
Account established pursuant to Section 3.04(b), which sub-account shall
constitute an asset of the Trust Fund and Grantor Trust V, but not an asset of
any REMIC Pool.
"Class X-CL Certificate" shall mean any one of the Certificates with a
"Class X-CL" designation on the face thereof, substantially in the form of
Exhibit A-2 attached hereto, and evidencing a portion of 31 separate "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-XX XXXXX III Component" shall mean any of the REMIC III
Components with respect to the Class X-CL Certificates.
"Class X-CP Certificate" shall mean any one of the Certificates with a
"Class X-CP" designation on the face thereof, substantially in the form of
Exhibit A-2 attached hereto, and evidencing a portion of 22 separate "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class X-CP REMIC III Component" shall mean any of the REMIC III
Components with respect to the Class X-CP Certificates.
"Clearstream" shall mean Clearstream Banking, Luxembourg or any
successor.
"Closing Date" shall mean April 7, 2004.
"CMSA" shall mean the Commercial Mortgage Securities Association, or
any association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or
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organization. If an organization or association described in one of the
preceding sentences of this definition does not exist, "CMSA" shall be deemed to
refer to such other association or organization as shall be selected by the
Master Servicer and reasonably acceptable to the Trustee, the Special Servicer
and the Controlling Class Representative.
"CMSA Bond Level File" shall mean the monthly report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Bond Level File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Collateral Summary File" shall mean the report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Collateral Summary File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Comparative Financial Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Comparative Financial Status Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally.
"CMSA Delinquent Loan Status Report" shall mean a report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Delinquent Loan Status Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be approved
by the CMSA for commercial mortgage securities transactions generally.
"CMSA Financial File" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Historical Liquidation Report" shall mean a report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Historical Liquidation Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be approved
by the CMSA for commercial mortgage securities transactions generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan Report"
shall mean a report substantially in the form of, and containing the information
called for in, the downloadable form of the "Historical Loan Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
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"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following six electronic files: (i) CMSA Loan Setup File, (ii)
CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA Bond
Level File, (v) CMSA Financial File and (vi) CMSA Collateral Summary File;
(b) the following nine supplemental reports: (i) CMSA Delinquent Loan
Status Report, (ii) CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, (iii) CMSA Historical Liquidation Report, (iv) CMSA
REO Status Report, (v) CMSA Operating Statement Analysis Report, (vi) CMSA
Comparative Financial Status Report, (vii) CMSA Servicer Watch List, (viii)
CMSA Loan Level Reserve/LOC Report and (ix) CMSA NOI Adjustment Worksheet;
and
(c) such other reports as the CMSA may approve from time to time as
being part of the CMSA Investor Reporting Package for commercial mortgage
securitization trusts generally and as are reasonably acceptable to the
Master Servicer.
"CMSA Loan Level Reserve/LOC Report" shall mean the monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve/LOC Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Loan Periodic Update File" shall mean the monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Periodic Update File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Loan Setup File" shall mean the report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Loan Setup File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA NOI Adjustment Worksheet" shall mean a report prepared by the
Master Servicer with respect to all the Performing Serviced Mortgage Loans, and
by the Special Servicer with respect to Specially Serviced Mortgage Loans and,
if they relate to Administered REO Properties, REO Mortgage Loans, which report
shall be substantially in the form of, and contain the information called for
in, the downloadable form of the "NOI Adjustment Worksheet" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Operating Statement Analysis Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Operating Statement Analysis Report" available as of
the Closing Date on the CMSA Website or in such other form for the presentation
of such information and containing such additional information as may from
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time to time be approved by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA Property File" shall mean a report substantially in the form of,
and containing the information called for in, the downloadable form of the
"Property File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA REO Status Report" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"REO Status Report" available as of the Closing Date on the CMSA Website, or in
such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Servicer Watch List" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Servicer Watch List" available as of the Closing Date on the CMSA Website,
or in such other form for the presentation of such information and containing
such additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Website" shall mean the CMSA's Website located at "xxx.xxxx.xxx"
or such other primary website as the CMSA may establish for dissemination of its
report forms.
"Code" shall mean the Internal Revenue Code of 1986 and regulations
promulgated thereunder, including temporary regulations and proposed regulations
to the extent that, by reason of their proposed effective date, could, as of the
date of any determination or opinion as to the tax consequences of any action or
proposed action or transaction, be applied to the Certificates.
"Co-Lender Agreement" shall mean the 000 Xxxxx Xxxxxx Co-Lender
Agreement, the GIC Office Co-Lender Agreement, the Somerset Collection Co-Lender
Agreement, the Xxxxxxxx Place Intercreditor Agreement or the Cumberland Place
Co-Lender Agreement, as applicable.
"Collection Account" shall mean the segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b), which shall
be entitled "Xxxxx Fargo Bank, N.A. [OR NAME OF ANY SUCCESSOR TRUSTEE], as
Trustee, in trust for the registered holders of LB-UBS Commercial Mortgage Trust
2004-C2, Commercial Mortgage Pass-Through Certificates, Series 2004-C2".
"Collection Period" shall mean, individually and collectively, as
applicable in the context used, (i) the Somerset Collection Collection Period
with respect to the Somerset Collection Loan Group and all related matters and
(ii) the Trust Collection Period with respect to the Mortgage Pool (exclusive of
the Somerset Collection Trust Mortgage Loan and any Somerset Collection REO
Trust Mortgage Loan) and all related matters.
"Commission" shall mean the Securities and Exchange Commission or any
successor agency.
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"Component Notional Amount" shall mean the notional amount on which
any Class X-XX XXXXX III Component or Class X-CP REMIC III Component accrues
interest, which, as of any date of determination, is equal to the then current
Uncertificated Principal Balance of such REMIC III Component's Corresponding
REMIC II Regular Interest.
"Condemnation Proceeds" shall mean all cash amounts Received by the
Trust in connection with the taking of all or a part of a Mortgaged Property or
REO Property by exercise of the power of eminent domain or condemnation,
subject, however, to the rights of any tenants and ground lessors, as the case
may be, and the terms of the related Mortgage.
"Controlling Class" shall mean, as of any date of determination, the
outstanding Class of Principal Balance Certificates that (a) bears the latest
alphabetic Class designation and (b) has a Class Principal Balance that is not
less than 25% of the Original Class Principal Balance of such Class; provided
that if no Class of Principal Balance Certificates has as of such date of
determination a Class Principal Balance that is not less than 25% of its
Original Class Principal Balance, then the Controlling Class shall be the then
outstanding Class of Principal Balance Certificates bearing the latest
alphabetic Class designation that has a Class Principal Balance greater than
zero; and provided, further, that, for purposes of determining, and exercising
the rights of, the Controlling Class, the Class A-1, Class A-2, Class A-3 and
Class A-4 Certificates shall be deemed a single Class of Certificates.
"Controlling Class Certificateholder" shall mean any Holder of a
Certificate of the Controlling Class.
"Controlling Class Representative" shall have the meaning assigned
thereto in Section 6.09(b).
"Corporate Trust Office" shall mean the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at: (i) in the case of
the Trustee in its capacity as Certificate Registrar, Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services-LB-UBS
Commercial Mortgage Trust 2004-C2; and (ii) for all other purposes, 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Services--LB-UBS Commercial Mortgage Trust 2004-C2.
"Corrected Mortgage Loan" shall mean any Serviced Mortgage Loan that
had been a Specially Serviced Mortgage Loan but has ceased to be such in
accordance with the definition of "Specially Serviced Mortgage Loan" (other than
by reason of a Liquidation Event occurring in respect of such Serviced Mortgage
Loan or the related Mortgaged Property's becoming an REO Property). None of the
Mortgage Loans comprising the GIC Office Loan Group shall constitute a Corrected
Mortgage Loan under this Agreement.
"Corrected Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that constitutes a Corrected Mortgage Loan.
"Corresponding REMIC II Regular Interest" shall mean: (a) with respect
to any Class of Principal Balance Certificates, the REMIC II Regular Interest
that has an alphabetic or alphanumeric, as applicable, designation that is the
same as the alphabetic or alphanumeric, as the case may be, designation for such
Class of Principal Balance Certificates (provided that each of REMIC II Regular
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Interest A-1-1, REMIC II Regular Interest A-1-2 and REMIC II Regular Interest
A-1-3 shall be a Corresponding REMIC II Regular Interest with respect to the
Class A-1 Certificates; each of REMIC II Regular Interest A-2-1, REMIC II
Regular Interest A-2-2, REMIC II Regular Interest A-2-3 and REMIC II Regular
Interest A-2-4 shall be a Corresponding REMIC II Regular Interest with respect
to the Class A-2 Certificates; each of REMIC II Regular Interest A-3-1 and REMIC
II Regular Interest A-3-2 shall be a Corresponding REMIC II Regular Interest
with respect to the Class A-3 Certificates; each of REMIC II Regular Interest
A-4-1 and REMIC II Regular Interest A-4-2 shall be a Corresponding REMIC II
Regular Interest with respect to the Class A-4 Certificates; each of REMIC II
Regular Interest E-1 and REMIC II Regular Interest E-2 shall be a Corresponding
REMIC II Regular Interest with respect to the Class E Certificates; each of
REMIC II Regular Interest F-1 and REMIC II Regular Interest F-2 shall be a
Corresponding REMIC II Regular Interest with respect to the Class F
Certificates; each of REMIC II Regular Interest G-1 and REMIC II Regular
Interest G-2 shall be a Corresponding REMIC II Regular Interest with respect to
the Class G Certificates; and each of REMIC II Regular Interest H-1 and REMIC II
Regular Interest H-2 shall be a Corresponding REMIC II Regular Interest with
respect to the Class H Certificates); (b) with respect to any Class X-XX XXXXX
III Component, the REMIC II Regular Interest that has an alphabetic or
alphanumeric, as applicable, designation that, when preceded by "X-CL-", is the
same as the alphabetic or alphanumeric, as the case may be, designation for such
Class X-XX XXXXX III Component; and (c) with respect to any Class X-CP REMIC III
Component, the REMIC II Regular Interest that has an alphabetic or alphanumeric,
as applicable, designation that, when preceded by "X-CP-", is the same as the
alphabetic or alphanumeric, as the case may be, designation for such Class X-CP
REMIC III Component.
"Covered Costs" shall mean, with respect to any Trust Mortgage Loan
and any related costs and expenses that the Depositor or the UBS Mortgage Loan
Seller, as applicable, are otherwise required to pay pursuant to Section
2.03(e), (i) if such Trust Mortgage Loan has an original principal balance equal
to or less than $10,000,000, the entire amount of such costs and expenses, but
only in the event such costs and expenses exceed a threshold of $10,000 and (ii)
if such Trust Mortgage Loan has an original principal balance greater than
$10,000,000, the entire amount of such costs and expenses, but only in the event
such costs and expenses exceed a threshold of $25,000. In the case of each of
clauses (i) and (ii) above in this definition, in the event the subject costs
and expenses do not exceed the required threshold stated in the subject clause,
the "Covered Costs" shall be $0.
"Cross-Collateralized Group" shall mean any group of
Cross-Collateralized Mortgage Loans; provided that no Loan Combination shall
constitute a Cross-Collateralized Group.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan that
is cross-defaulted and cross-collateralized with any other Mortgage Loan;
provided that none of the Mortgage Loans in a Loan Combination shall constitute
a Cross-Collateralized Mortgage Loan.
"Cumberland Place Change of Control Event" shall mean the event that
occurs when: (a) the principal amount of the Cumberland Place Non-Trust Mortgage
Loan or any successor REO Mortgage Loan with respect thereto (net of any
existing Appraisal Reduction Amount with respect to the Cumberland Place Loan
Pair) is less than (b) 75.0% of the original principal balance of the Cumberland
Place Non-Trust Mortgage Loan.
"Cumberland Place Co-Lender Agreement" shall have the meaning assigned
thereto in the Preliminary Statement.
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"Cumberland Place Controlling Party" shall mean the Cumberland Place
Directing Lender or any representative appointed thereby, consistent with
Section 3.03(d) of the Cumberland Place Co-Lender Agreement, to exercise the
rights and powers of the Cumberland Place Directing Lender under the Cumberland
Place Co-Lender Agreement or this Agreement.
"Cumberland Place Cure Rights" shall mean the cure rights on the part
of the Cumberland Place Non-Trust Mortgage Loan Noteholder provided for in
Article V of the Cumberland Place Co-Lender Agreement.
"Cumberland Place Custodial Account" shall mean the segregated account
or accounts created and maintained by the Master Servicer pursuant to Section
3.04D on behalf of the Cumberland Place Noteholders, which shall be entitled
"[NAME OF MASTER SERVICER], as Master Servicer, in trust for [NAMES OF
CUMBERLAND PLACE NOTEHOLDERS], as their interests may appear".
"Cumberland Place Directing Lender" shall mean, as of any date of
determination, the "Directing Lender" under the Cumberland Place Co-Lender
Agreement.
"Cumberland Place Loan Pair" shall have the meaning assigned thereto
in the Preliminary Statement (and shall include any successor REO Mortgage Loans
with respect to the Cumberland Place Mortgage Loans).
"Cumberland Place Mortgage Loan" shall mean the Cumberland Place Trust
Mortgage Loan or the Cumberland Place Non-Trust Mortgage Loan, as applicable.
"Cumberland Place Mortgaged Property" shall mean the mortgaged
property identified on the Trust Mortgage Loan Schedule as Shops at Cumberland
Place.
"Cumberland Place Non-Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Cumberland Place Non-Trust Mortgage Loan Noteholder" shall mean the
holder of the Cumberland Place Non-Trust Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto).
"Cumberland Place Noteholders" shall mean, collectively, the holder of
the Mortgage Note for the Cumberland Place Trust Mortgage Loan, together with
the Cumberland Place Non-Trust Mortgage Loan Noteholder.
"Cumberland Place REO Account" shall mean the segregated account or
accounts created and maintained by the Special Servicer pursuant to Section 3.16
on behalf of the Cumberland Place Noteholders, which shall be entitled "[NAME OF
SPECIAL SERVICER], as Special Servicer, in trust for [NAMES OF CUMBERLAND PLACE
NOTEHOLDERS], as their interests may appear".
"Cumberland Place REO Mortgage Loan" shall mean any REO Mortgage Loan
relating to a Cumberland Place Mortgage Loan.
"Cumberland Place REO Property" shall mean the Cumberland Place
Mortgaged Property, at such time that it becomes an REO Property hereunder.
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"Cumberland Place REO Trust Mortgage Loan" shall mean any REO Trust
Mortgage Loan relating to the Cumberland Place Trust Mortgage Loan.
"Cumberland Place Specially Designated Servicing Actions" shall mean,
with respect to the Cumberland Place Loan Pair or any related REO Property, any
of the actions specified in clauses (i) through (x) of Section 3.03(a) of the
Cumberland Place Co-Lender Agreement.
"Cumberland Place Trust Mortgage Loan" shall have the meaning assigned
thereto in the Preliminary Statement, which mortgage loan is identified on the
Trust Mortgage Loan Schedule by loan number 41 and is, together with the
Cumberland Place Non-Trust Mortgage Loans, secured by the same Mortgage(s) on
the Cumberland Place Mortgaged Property.
"Cure Rights" shall mean the Somerset Collection Cure Rights, the
Xxxxxxxx Place Cure Rights, and the Cumberland Place Cure Rights, as applicable.
"Custodial Account" shall mean the Pool Custodial Account, the 000
Xxxxx Xxxxxx Custodial Account, the Somerset Collection Custodial Account, the
Xxxxxxxx Place Custodial Account or the Cumberland Place Custodial Account, as
applicable.
"Custodian" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for some or all of the
Mortgage Files, which Person shall not be the Depositor, a Mortgage Loan Seller
or an Affiliate of the Depositor or a Mortgage Loan Seller. If no such custodian
has been appointed, or if such custodian has been so appointed but the Trustee
shall have terminated such appointment, then the Trustee shall be the Custodian.
"Cut-off Date" shall mean March 11, 2004.
"Cut-off Date Balance" shall mean, with respect to any Mortgage Loan,
the outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
net of all unpaid payments of principal due in respect thereof on or before such
date.
"Default Charges" shall mean Default Interest and/or late payment
charges that are paid or payable, as the context may require, to the Trust (or,
if applicable, a Serviced Non-Trust Mortgage Loan Noteholder) in respect of any
Mortgage Loan or any successor REO Mortgage Loan with respect thereto.
"Default Interest" shall mean: (a) with respect to any Serviced
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto), any
amounts collected thereon (other than late payment charges, Prepayment Premiums
or Yield Maintenance Charges) that represent penalty interest (arising out of a
default) in excess of (i) interest accrued on the principal balance of such
Serviced Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto), at the related Mortgage Rate (net of any applicable Additional
Interest Rate included as part of such Mortgage Rate), and (ii) in the case of
an ARD Mortgage Loan (or any successor REO Trust Mortgage Loan with respect
thereto) after the related Anticipated Repayment Date, any Additional Interest;
and (b) with respect to the GIC Trust Mortgage Loan or any GIC REO Trust
Mortgage Loan, any amounts Received by the Trust thereon that represent "Default
Interest" as defined under the GIC Co-Lender Agreement.
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"Defaulted Trust Mortgage Loan" shall mean a Specially Serviced Trust
Mortgage Loan (i) that is delinquent in an amount equal to at least two Monthly
Payments (not including the Balloon Payment) or is delinquent thirty days or
more in respect of its Balloon Payment, in either case such delinquency to be
determined without giving effect to any grace period permitted by the related
Mortgage or Mortgage Note and without regard to any acceleration of payments
under the related Mortgage and Mortgage Note, or (ii) as to which the Master
Servicer or the Special Servicer has, by written notice to the related
Mortgagor, accelerated the maturity of the indebtedness evidenced by the related
Mortgage Note. In no event shall the GIC Office Trust Mortgage Loan constitute a
Defaulted Trust Mortgage Loan hereunder.
"Defaulting Party" shall have the meaning assigned thereto in Section
7.01(b).
"Defeasance Certificate" shall have the meaning assigned thereto in
Section 3.20(k).
"Defeasance Collateral" shall mean, with respect to any Defeasance
Mortgage Loan, the Government Securities required or permitted to be pledged in
lieu of prepayment pursuant to the terms thereof in order to obtain a release of
the related Mortgaged Property.
"Defeasance Deposit Account" shall have the meaning assigned thereto
in Section 3.04(a).
"Defeasance Mortgage Loan" shall mean any Mortgage Loan that permits
the related Mortgagor to pledge Defeasance Collateral to the holder of such
Mortgage Loan in connection with obtaining the release of all or any portion of
the related Mortgaged Property (or permits the holder of such Mortgage Loan to
require the related Mortgagor to pledge Defeasance Collateral to the holder of
such Mortgage Loan in lieu of prepayment).
"Defeasance Trust Mortgage Loan" shall mean any Trust Mortgage Loan
that is a Defeasance Mortgage Loan.
"Definitive Certificate" shall have the meaning assigned thereto in
Section 5.03(a).
"Definitive Non-Registered Certificate" shall mean any Non-Registered
Certificate that has been issued as a Definitive Certificate.
"Definitive Subordinate Certificate" shall mean any Subordinate
Certificate that has been issued as a Definitive Certificate.
"Depositor" shall mean SASCO II.
"Depositor Backup Certification" shall have the meaning assigned
thereto in Section 8.15(j).
"Depository" shall mean The Depository Trust Company or any successor
Depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial
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Code of the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act.
"Depository Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date" shall mean, individually and collectively, as
applicable in the context used, (i) the Somerset Collection Determination Date
with respect to the Somerset Collection Loan Group and all related matters, and
(ii) the Trust Determination Date with respect to the Mortgage Pool (exclusive
of the Somerset Collection Trust Mortgage Loan and any Somerset Collection REO
Trust Mortgage Loan) and all related matters.
"Directly Operate" shall mean, with respect to any Administered REO
Property, the furnishing or rendering of services to the tenants thereof, the
management or operation of such Administered REO Property, the holding of such
REO Property primarily for sale or lease, the performance of any construction
work thereon or any use of such Administered REO Property in a trade or business
conducted by REMIC I other than through an Independent Contractor; provided,
however, that the Trustee (or the Special Servicer or any Sub-Servicer on behalf
of the Trustee) shall not be considered to Directly Operate an Administered REO
Property solely because the Trustee (or the Special Servicer or any Sub-Servicer
on behalf of the Trustee) establishes rental terms, chooses tenants, enters into
or renews leases, deals with taxes and insurance, or makes decisions as to
repairs or capital expenditures with respect to such Administered REO Property.
"Discount Rate" shall mean, with respect to any prepaid Trust Mortgage
Loan or REO Trust Mortgage Loan, for purposes of allocating any Prepayment
Premium or Yield Maintenance Charge Received by the Trust with respect thereto
among the respective Classes of the YM Principal Balance Certificates, a rate
which, when compounded monthly, is equivalent to the Yield Maintenance Treasury
Rate, when compounded semi-annually.
"Disqualified Non-United States Tax Person" shall mean, with respect
to any Residual Interest Certificate, any Non-United States Tax Person or agent
thereof other than: (1) a Non-United States Tax Person that (a) holds such
Residual Interest Certificate and, for purposes of Treasury regulations section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies
that it understands that, for purposes of Treasury regulations section
1.860E-1(c)(4)(ii), as a holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in excess of
any cash flows generated by such Residual Interest Certificate and intends to
pay taxes associated with holding such Residual Interest Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS Form W-8ECI
or successor form and has agreed to update such form as required under the
applicable Treasury regulations; or (2) a Non-United States Tax Person that has
delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
"Disqualified Organization" shall mean any of the following: (i) the
United States, any State or any political subdivision thereof, any foreign
government, international organization, or any agency or instrumentality of any
of the foregoing; (ii) any organization (except certain farmers'
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cooperatives described in Section 521 of the Code) that is exempt from the tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business income); (iii) rural
electric and telephone cooperatives described in Section 1381 of the Code; or
(iv) any other Person so designated by the Trustee or the Tax Administrator
based upon an Opinion of Counsel that the holding of an Ownership Interest in a
Residual Interest Certificate by such Person may cause the Trust Fund or any
Person having an Ownership Interest in any Class of Certificates, other than
such Person, to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Interest Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
"Disqualified Partnership" shall mean any domestic entity classified
as a partnership under the Code if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest" shall mean, with respect to any
Class of Regular Interest Certificates for any Distribution Date, subject to
Section 4.05(b), an amount of interest equal to (a) the amount of Accrued
Certificate Interest in respect of such Class of Certificates for the related
Interest Accrual Period, reduced (to not less than zero) by (b) that portion, if
any, of the Net Aggregate Prepayment Interest Shortfall for such Distribution
Date allocated to such Class of Certificates as provided below. For purposes of
the foregoing, the portion of the Net Aggregate Prepayment Interest Shortfall,
if any, for each Distribution Date that is allocable to each Class of Regular
Interest Certificates shall equal the lesser of (A) the amount of Accrued
Certificate Interest with respect to the subject Class of Regular Interest
Certificates for the related Interest Accrual Period and (B) the product of (1)
the entire amount of such Net Aggregate Prepayment Interest Shortfall,
multiplied by (2) a fraction, the numerator of which is equal to the amount of
Accrued Certificate Interest with respect to the subject Class of Regular
Interest Certificates for the related Interest Accrual Period, and the
denominator of which is equal to the aggregate amount of Accrued Certificate
Interest with respect to all the Classes of Regular Interest Certificates for
the related Interest Accrual Period.
"Distributable Component Interest" shall mean, with respect to any
REMIC III Component of either Class of Interest-Only Certificates for any
Distribution Date, subject to Section 4.05(b), an amount of interest equal to
(a) the amount of Accrued Component Interest in respect of such REMIC III
Component for the related Interest Accrual Period, reduced (to not less than
zero) by (b) the product of (i) the entire portion of any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date that was allocated to
such Class of Interest-Only Certificates in accordance with the definition of
"Distributable Certificate Interest", multiplied by (ii) a fraction, the
numerator of which is the amount of any Accrued Component Interest in respect of
such REMIC III Component for the related Interest Accrual Period, and the
denominator of which is the amount of the Accrued Certificate Interest in
respect of such Class of Interest-Only Certificates for the related Interest
Accrual Period.
"Distribution Date" shall mean the date each month, commencing in
April 2004, on which, among other things, the Trustee is to make distributions
on the Certificates, which date shall be the fourth Business Day following the
Trust Determination Date in such calendar month.
"Distribution Date Statement" shall have the meaning assigned thereto
in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in Section
2.03(a).
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"Due Date" shall mean: (i) with respect to any Mortgage Loan on or
prior to its Stated Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on such Mortgage Loan is scheduled
to be first due; (ii) with respect to any Mortgage Loan after its Stated
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on such Mortgage Loan had been scheduled to be first
due; and (iii) with respect to any REO Mortgage Loan, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment on the related
Mortgage Loan had been scheduled to be first due.
"XXXXX" shall mean the Commission's Electronic Data Gathering,
Analysis and Retrieval system.
"Eligible Account" shall mean any of: (i) an account maintained with a
federal or state chartered depository institution or trust company, the
long-term deposit or unsecured debt obligations of which are rated at least
"Aa3" by Moody's and at least "AA-" (or, if such depository institution or trust
company has short-term unsecured debt obligations rated at least "A-1" by S&P,
at least "A-") by S&P (or, in the case of either Rating Agency (and, if
applicable, Fitch), such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates that is rated by such Rating
Agency (or, in the case of an account that relates solely to a Serviced Loan
Combination, with respect to any Class of Certificates or any class of related
Pari Passu Non-Trust Mortgage Loan Securities that is rated by such Rating
Agency (or, if applicable, Fitch)), as evidenced in writing by such Rating
Agency (and, if applicable, Fitch)) at any time funds are on deposit therein (if
such funds are to be held for more than 30 days), or the short-term deposits of
which are rated at least "P-1" by Moody's and at least "A-1" by S&P (or, in the
case of either Rating Agency (and, if applicable, Fitch), such lower rating as
will not result in an Adverse Rating Event with respect to any Class of
Certificates that is rated by such Rating Agency (or, in the case of an account
that relates solely to a Serviced Loan Combination, with respect to any Class of
Certificates or any class of related Pari Passu Non-Trust Mortgage Loan
Securities that is rated by such Rating Agency (or, if applicable, Fitch)), as
evidenced in writing by such Rating Agency (and, if applicable, Fitch)) at any
time funds are on deposit therein (if such funds are to be held for 30 days or
less); or (ii) a segregated trust account maintained with the trust department
of a federal or state chartered depository institution or trust company acting
in its fiduciary capacity (which may be the Trustee), which has a combined
capital and surplus of at least $50,000,000, is subject to supervision or
examination by federal or state authority and, in the case of a state chartered
depository institution or trust company, is subject to regulations regarding
fiduciary funds on deposit therein substantially similar to 12 CFR Section
9.10(b); (iii) an account or accounts maintained with PNC so long as PNC shall
have (A) a long-term unsecured debt rating of at xxxxx "X0" from Moody's and a
short-term unsecured debt rating of at least "P-1" from Moody's and (B) a
long-term unsecured debt rating of at least "A" from S&P and a short-term
unsecured debt rating of at least "A-1" by S & P; or (iv) any other account, the
use of which would not, in and of itself, cause an Adverse Rating Event with
respect to any Class of Certificates that is rated by either Rating Agency (or,
in the case of an account that relates solely to a Serviced Loan Combination,
with respect to any Class of Certificates or any class of related Pari Passu
Non-Trust Mortgage Loan Securities that is rated by either Rating Agency (or, if
applicable, Fitch)), as evidenced in writing by such Rating Agency (and, if
applicable, Fitch).
"Environmental Assessment" shall mean a "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of the Xxxxxx Xxx Multifamily
Guide and the ASTM Standard for Environmental Site Assessments, each as amended
from time to time.
-35-
"Environmental Insurance Policy" shall mean, with respect to any
Mortgaged Property or REO Property, any insurance policy covering pollution
conditions and/or other environmental conditions that is maintained from time to
time in respect of such Mortgaged Property or REO Property, as the case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmentally Insured Mortgage Loans" shall mean the Serviced
Mortgage Loans identified on Schedule III hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Mortgagor for
application toward the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and other items for which an escrow has
been created in respect of the related Mortgaged Property.
"Euroclear" shall mean The Euroclear System or any successor.
"Event of Default" shall have the meaning assigned thereto in Section
7.01(a).
"Excess Liquidation Proceeds" shall mean the excess, if any, of (a)
the Net Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Trust Mortgage Loan or Administered REO Property, net of (i) interest
on any related Advances, (ii) any related Servicing Advances, (iii) any
Liquidation Fee payable from such Net Liquidation Proceeds, and (iv) in the case
of a Trust Mortgage Loan that is part of, or an REO Property that relates to, a
Serviced Loan Combination, the portion of such Net Liquidation Proceeds payable
to the related Non-Trust Mortgage Loan Noteholder(s), over (b) the amount needed
to pay off the subject Trust Mortgage Loan or the related REO Trust Mortgage
Loan, as applicable, in full.
"Excess Liquidation Proceeds Account" shall mean the segregated
account or accounts (or the segregated sub-account of the Collection Account)
created and maintained by the Trustee pursuant to Section 3.04(d) in trust for
the Certificateholders, which shall be entitled "Xxxxx Fargo Bank, N.A. [OR THE
NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the registered holders
of LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage Pass-Through
Certificates, Series 2004-C2".
"Excess Servicing Strip" shall mean, with respect to any Trust
Mortgage Loan or REO Trust Mortgage Loan, the portion of the related Master
Servicing Fee that accrues at the related Excess Servicing Strip Rate in effect
from time to time, subject to reduction by the Trustee in accordance with
Section 3.11(a).
"Excess Servicing Strip Rate" shall mean, with respect to any Trust
Mortgage Loan or REO Trust Mortgage Loan, a rate per annum, subject to reduction
by the Trustee in accordance with Section 3.11(a), equal to the excess of the
related Master Servicing Fee Rate over 0.01% per annum.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Act Reports" shall have the meaning assigned thereto in
Section 8.15(a).
-36-
"Exemption-Favored Party" shall mean any of (i) Xxxxxx Brothers, (ii)
any Person directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with Xxxxxx Brothers, and
(iii) any member of any underwriting syndicate or selling group of which any
Person described in clauses (i) and (ii) is a manager or co-manager with respect
to a Class of Investment Grade Certificates.
"Xxxxxx Xxx" shall mean the Federal National Mortgage Association or
any successor.
"FASB 140" shall mean the Financial Accounting Standards Board's
Statement No. 140, entitled "Accounting for Transfers and Servicing of Financial
Assets and Extinguishment of Liabilities", issued in September 2002.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date" shall mean the Distribution Date on which
the final distribution is to be made with respect to the Certificates in
connection with a termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination" shall mean a determination by the
Special Servicer with respect to any Specially Serviced Mortgage Loan or
Administered REO Property that there has been a recovery of all Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds and other payments or
recoveries that the Special Servicer has determined, in accordance with the
Servicing Standard, will be ultimately recoverable; provided that the term
"Final Recovery Determination" shall not apply to: (i) a Specially Serviced
Mortgage Loan that was paid in full; or (ii) a Specially Serviced Trust Mortgage
Loan or Administered REO Property that was transferred in connection with the
exchange by all the Certificateholders of their Certificates for all the
Mortgage Loans and each REO Property remaining in the Trust Fund pursuant to
Section 9.01; or (iii) a Specially Serviced Trust Mortgage Loan or Administered
REO Property, as the case may be, that was purchased (A) by the Depositor
pursuant to Section 2.03, (B) by or on behalf of the UBS Mortgage Loan Seller
pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement, (C) by the
Depositor, Xxxxxx Brothers, the Special Servicer, a Controlling Class
Certificateholder or the Master Servicer pursuant to Section 9.01, (D) by the
holder of a related mezzanine loan in connection with a Mortgage Loan default,
as set forth in the related intercreditor agreement, or (E) in the case of a
Trust Mortgage Loan or a Serviced Pari Passu Non-Trust Mortgage Loan that, in
either such case, is part of a Loan Combination, by a related (or, if
applicable, another related) Non-Trust Mortgage Loan Noteholder or its designee
pursuant to the related Co-Lender Agreement; or (iv) a Defaulted Trust Mortgage
Loan that was purchased by the Majority Controlling Class Certificateholder(s),
an assignee thereof or the Special Servicer in accordance with Section 3.18(b);
and provided, further, that the term "Final Recovery Determination" shall
include any comparable determination made by the GIC Office Special Servicer
under the GIC Office Servicing Agreement with respect to the GIC Office Trust
Mortgage Loan or a GIC Office REO Property.
"Fiscal Agent" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.17 to act as fiscal agent hereunder.
"Fiscal Agent Agreement" shall have the meaning assigned thereto in
Section 8.17.
-37-
"Fitch" shall mean Fitch, Inc. or its successor in interest, but only
to the extent it is then rating any class of Pari Passu Non-Trust Mortgage Loan
Securities.
"Five-Year Mortgage Loan" shall mean any Mortgage Loan that has a
Stated Maturity Date that extends not more than five years from the first Due
Date of such Mortgage Loan.
"GAAP" shall mean generally accepted accounting principles in the
United States of America.
"General Special Servicer" shall have the meaning assigned thereto in
Section 7.01(c).
"GIC Office 2004-C1 Certificates" shall have the meaning assigned
thereto in the Preliminary Statement.
"GIC Office 2004-C1 Securitization" shall have the meaning assigned
thereto in the Preliminary Statement.
"GIC Office Co-Lender Agreement" shall have the meaning assigned
thereto in the Preliminary Statement.
"GIC Office Collection Period" shall mean, with respect to any
Distribution Date or Trust Master Servicer Remittance Date, the applicable
"Collection Period" or other comparable one-month period in respect of the GIC
Office Loan Group under the GIC Office Servicing Agreement ending in the
calendar month in which such Distribution Date or Trust Master Servicer
Remittance Date, as the case may be, occurs.
"GIC Office Event of Default" shall mean an "Event of Default" under,
and within the meaning of, the GIC Office Servicing Agreement that materially
and adversely affects the Trustee, in its capacity as holder of the GIC Office
Trust Mortgage Loan or any GIC Office REO Trust Mortgage Loan, or the interests
of the Certificateholders.
"GIC Office Loan Group" shall have the meaning assigned thereto in the
Preliminary Statement, and shall be deemed to refer to the GIC Office Trust
Mortgage Loans and the GIC Office Non-Trust Mortgage Loans (each of which shall
be deemed to remain outstanding) notwithstanding that a GIC Office Mortgaged
Property becomes an REO Property.
"GIC Office Master Servicer" shall have the meaning assigned thereto
in the Preliminary Statement, and shall include any successor master servicer
appointed pursuant to the GIC Office Servicing Agreement and/or the GIC Office
Co-Lender Agreement to service the GIC Office Loan Group.
"GIC Office Mortgaged Properties" shall have the meaning assigned
thereto in the Preliminary Statement.
"GIC Office Non-Trust Mortgage Loans" shall have the meaning assigned
thereto in the Preliminary Statement.
-38-
"GIC Office Non-Trust Mortgage Loan Noteholders" shall mean,
collectively, the GIC Office Pari Passu Non-Trust Mortgage Loan Noteholders and
the GIC Office Subordinate Non-Trust Mortgage Loan Noteholder.
"GIC Office Note A-1A Non-Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"GIC Office Note A-2A Non-Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"GIC Office Note A-2B Non-Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"GIC Office Note A-2C Non-Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"GIC Office Note A-2D Non-Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"GIC Office Noteholders" shall mean, collectively, the holder of the
Mortgage Note for the GIC Office Trust Mortgage Loan, together with the GIC
Office Non-Trust Mortgage Loan Noteholders.
"GIC Office Pari Passu Non-Trust Mortgage Loans" shall have the
meaning assigned thereto in the Preliminary Statement.
"GIC Office Pari Passu Non-Trust Mortgage Loan Noteholders" shall mean
the respective holders of the Mortgage Notes for the GIC Office Pari Passu
Non-Trust Mortgage Loans.
"GIC Office REO Property" shall mean any of the GIC Office Mortgaged
Properties at such time that it becomes an "REO Property" under, and within the
meaning of, the GIC Office Servicing Agreement.
"GIC Office REO Trust Mortgage Loan" shall mean any REO Trust Mortgage
Loan relating to the GIC Office Trust Mortgage Loan.
"GIC Office Servicer" shall mean either the GIC Office Master Servicer
or the GIC Office Special Servicer, as applicable.
"GIC Office Servicing Agreement" shall have the meaning assigned
thereto in the Preliminary Statement, and shall include any successor servicing
agreement in accordance with the GIC Office Co-Lender Agreement.
"GIC Office Special Servicer" shall have the meaning assigned thereto
in the Preliminary Statement, and shall include any successor special servicer
appointed pursuant to the GIC Office Servicing Agreement and/or the GIC Office
Co-Lender Agreement to specially service the GIC Office Loan Group or any GIC
Office REO Property.
-39-
"GIC Office Subordinate Non-Trust Mortgage Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"GIC Office Subordinate Non-Trust Mortgage Loan Noteholder" shall mean
the holder of the Mortgage Note for the GIC Office Subordinate Non-Trust
Mortgage Loan.
"GIC Office Trustee" shall have the meaning assigned thereto in the
Preliminary Statement, and shall include any successor trustee appointed
pursuant to the GIC Office Servicing Agreement.
"GIC Office Trust Mortgage Loan" shall have the meaning assigned
thereto in the Preliminary Statement, which mortgage loan is identified on the
Trust Mortgage Loan Schedule as mortgage loan number 2 and is, together with the
GIC Office Non-Trust Mortgage Loans, secured by the same Mortgage(s) on the GIC
Office Mortgaged Properties.
"Global Certificate" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates, either the related Rule 144A Global
Certificate or the Regulation S Global Certificate.
"Government Securities" shall mean "Government Securities" as defined
in Section 2(a)(16) of the Investment Company Act of 1940, excluding any such
securities that are not acceptable to either Rating Agency as Defeasance
Collateral.
"Grantor Trust" shall mean a "grantor trust" within the meaning of the
Grantor Trust Provisions.
"Grantor Trust Assets" shall mean: (a) the Excess Servicing Strip; and
(b) any collections of Additional Interest Received by the Trust with respect to
the ARD Trust Mortgage Loans and any successor REO Trust Mortgage Loans with
respect thereto.
"Grantor Trust V" shall mean the Grantor Trust designated as such in
Section 2.05(a).
"Grantor Trust Provisions" shall mean Subpart E of Part 1 of
Subchapter J of the Code, including Treasury regulations section
301.7701-4(c)(2).
"Ground Lease" shall mean, with respect to any Mortgage Loan for which
the related Mortgagor has a leasehold interest in the related Mortgaged
Property, the lease agreement(s) (including any lease agreement with respect to
a master space lease) creating such leasehold interest.
"Hazardous Materials" shall mean any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including those so identified
pursuant to CERCLA or any other federal, state or local environmental related
laws and regulations now existing or hereafter enacted, and specifically
including asbestos and asbestos-containing materials, polychlorinated biphenyls,
radon gas, petroleum and petroleum products and urea formaldehyde.
"Holder" shall mean a Certificateholder.
-40-
"HUD-Approved Servicer" shall mean a servicer that is a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to Sections
203 and 211 of the National Housing Act.
"Independent" shall mean, when used with respect to any specified
Person, any such Person who (i) is in fact independent of the Depositor, each
Mortgage Loan Seller, the Master Servicer, the Special Servicer, any Controlling
Class Certificateholder, any Non-Trust Mortgage Loan Noteholder and any and all
Affiliates thereof, (ii) does not have any direct financial interest in or any
material indirect financial interest in any of the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Controlling Class
Certificateholder, any Non-Trust Mortgage Loan Noteholder, or any Affiliate
thereof, and (iii) is not connected with the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Controlling Class
Certificateholder, any Non-Trust Mortgage Loan Noteholder or any Affiliate
thereof as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions; provided, however, that a
Person shall not fail to be Independent of the Depositor, a Mortgage Loan
Seller, the Master Servicer, the Special Servicer, a Controlling Class
Certificateholder, a Non-Trust Mortgage Loan Noteholder or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any class of
securities issued by the Depositor, such Mortgage Loan Seller, the Master
Servicer, the Special Servicer, such Controlling Class Certificateholder, such
Non-Trust Mortgage Loan Noteholder or any Affiliate thereof, as the case may be;
provided that such ownership constitutes less than 1% of the total assets owned
by such Person.
"Independent Appraiser" shall mean an Independent professional real
estate appraiser who (i) is a member in good standing of the Appraisal
Institute, (ii) if the state in which the subject Mortgaged Property is located
certifies or licenses appraisers, is certified or licensed in such state, and
(iii) has a minimum of five years experience in the subject property type and
market.
"Independent Contractor" shall mean: (a) any Person that would be an
"independent contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of the Code if REMIC I were a real estate investment trust (except
that the ownership test set forth in that section shall be considered to be met
by any Person that owns, directly or indirectly, 35 percent or more of any Class
of Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund, delivered to the
Trustee (and, if a Serviced Loan Combination is involved, to the related
Serviced Non-Trust Mortgage Loan Noteholder(s)), provided that (i) such REMIC
Pool does not receive or derive any income from such Person and (ii) the
relationship between such Person and such REMIC Pool is at arm's length, all
within the meaning of Treasury regulations section 1.856-4(b)(5); or (b) any
other Person upon receipt by the Trustee (and, if a Serviced Loan Combination is
involved, by the related Serviced Non-Trust Mortgage Loan Noteholder(s)) of an
Opinion of Counsel, which shall be at no expense to the Master Servicer, the
Special Servicer, the Trustee or the Trust Fund, to the effect that the taking
of any action in respect of any Administered REO Property by such Person,
subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor, will not cause such
Administered REO Property to cease to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of
the Code, or cause any income realized in respect of such Administered REO
Property to fail to qualify as Rents from Real Property, due to such Person's
failure to be treated as an Independent Contractor.
-41-
"Initial Pool Balance" shall mean the aggregate of the Cut-off Date
Balances of the Trust Mortgage Loans.
"Initial Resolution Period" shall have the meaning assigned thereto in
Section 2.03(a).
"Institutional Accredited Investor" or "IAI" shall mean an "accredited
investor" as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a)
under the Securities Act or any entity in which all of the equity owners come
within such paragraphs.
"Insurance Policy" shall mean, with respect to any Mortgage Loan, any
hazard insurance policy, flood insurance policy, title policy, Environmental
Insurance Policy or other insurance policy that is maintained from time to time
in respect of such Mortgage Loan or the related Mortgaged Property.
"Insurance Proceeds" shall mean the proceeds paid under any Insurance
Policy, to the extent such proceeds are not applied to the restoration of the
related Mortgaged Property, released to the Mortgagor, or any tenants or ground
lessors, as the case may be, pursuant to the terms of the related Mortgage or
lease, in accordance with the Servicing Standard.
"Insured Environmental Event" shall have the meaning assigned thereto
in Section 3.07(d).
"Interest Accrual Basis" shall mean the basis on which interest
accrues in respect of any Mortgage Loan, any REO Mortgage Loan, any REMIC I
Regular Interest, any REMIC II Regular Interest, any Class of Regular Interest
Certificates or any particular REMIC III Component of a Class of Interest-Only
Certificates, in each case consisting of one of the following: (i) a 360-day
year consisting of twelve 30-day months; (ii) actual number of days elapsed in a
360-day year; (iii) actual number of days elapsed in a 365-day year; or (iv)
actual number of days elapsed in an actual calendar year (taking account of leap
year).
"Interest Accrual Period" shall mean, with respect to any REMIC I
Regular Interest, any REMIC II Regular Interest, any Class of Regular Interest
Certificates or any particular REMIC III Component of a Class of Interest-Only
Certificates, for any Distribution Date, the period commencing on the 11th
calendar day of the month immediately preceding the month in which such
Distribution Date occurs and ending on the 10th calendar day of the month in
which such Distribution Date occurs.
"Interested Person" shall mean the Depositor, the Master Servicer, the
Special Servicer, the Trustee, any Fiscal Agent, any Certificateholder, or any
Affiliate of any such Person.
"Interest-Only Certificates" shall mean, collectively, the Class X-CL
and Class X-CP Certificates.
"Interest Reserve Account" shall mean the segregated account or
accounts (or the segregated sub-account of the Collection Account) created and
maintained by the Trustee pursuant to Section 3.04(c) in trust for
Certificateholders, which shall be entitled "Xxxxx Fargo Bank, N.A. [OR THE NAME
OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the registered holders of
LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage Pass-Through
Certificates, Series 2004-C2".
-42-
"Interest Reserve Amount" shall mean, with respect to each Interest
Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan, for any
Distribution Date that occurs during February of 2005 or February of any year
thereafter or during January of 2005 or January of any year thereafter that is
not a leap year, an amount equal to one day's interest accrued at the related
Mortgage Rate (net of the related Additional Interest Rate in the case of an ARD
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto after the related Anticipated Repayment Date, and net of 0.015%, in the
case of the GIC Office Mortgage Loan or any GIC Office REO Trust Mortgage Loan )
on the related Stated Principal Balance as of the Due Date in the month in which
such Distribution Date occurs (but prior to the application of any amounts due
on such Due Date), to the extent that a Monthly Payment is Received by the Trust
in respect thereof for such Due Date as of the related Determination Date or a
P&I Advance is made under this Agreement in respect thereof for such Due Date by
such Distribution Date.
"Interest Reserve Mortgage Loan" shall mean any Trust Mortgage Loan
that accrues interest on an Actual/360 Basis.
"Interest Reserve REO Mortgage Loan" shall mean any REO Trust Mortgage
Loan as to which the predecessor Trust Mortgage Loan was an Interest Reserve
Mortgage Loan.
"Investment Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Investment Grade Certificate" shall mean, as of any date of
determination, a Certificate that is rated in one of the four highest generic
rating categories by at least one Rating Agency.
"Investment Period" shall mean: (a) with respect to any investment of
funds in any Investment Account maintained by the Master Servicer or the Special
Servicer, the period that ends at the close of business (New York City time) on
each Determination Date and commences immediately following the end of the prior
such period (or, in the case of the first such period, commences on the Closing
Date) or, in the case of an Investment Account maintained by the Master Servicer
or the Special Servicer that relates solely to the Somerset Collection Loan
Group, the period that ends at the close of business (New York City time) on
each Somerset Collection Determination Date and commences immediately following
the end of the prior such period (or, in the case of the first such period,
commences on the Closing Date); (b) with respect to any investment of funds in
any Investment Account maintained by the Trustee, for which a Person other than
the depository institution maintaining such Investment Account is the obligor on
such investment, the period that ends at the close of business (New York City
time) on each Trust Master Servicer Remittance Date (or, in the case of the
Excess Liquidation Proceeds Account and the Interest Reserve Account, the
Business Day prior to each Trust Master Servicer Remittance Date) and commences
immediately following the end of the prior such period (or, in the case of the
first such period, commences on the Closing Date); and (c) with respect to any
investment of funds in any Investment Account maintained by the Trustee, but
only if and to the extent that the depository institution maintaining such
Investment Account is the obligor on such investment, the period that ends at
the close of business (New York City time) on each Distribution Date (prior to
distributions on the Certificates being made on such Distribution Date) (or, in
the case of the Excess Liquidation Proceeds Account and the Interest Reserve
Account, each Trust Master Servicer Remittance Date) and commences immediately
following the end of the prior such period (or, in the case of the first such
period, commences on the Closing Date).
"IRS" shall mean the Internal Revenue Service or any successor agency.
-00-
"Xxxxxxxx Xxxxx Xxxxx Status Report" shall mean an "Asset Status
Report" as defined in, and meeting the requirements (including the information
requirements) set forth in Section 4(e) of, the Xxxxxxxx Place Intercreditor
Agreement.
"Xxxxxxxx Place Cure Rights" shall mean the cure rights on the part of
the Xxxxxxxx Place Non-Trust Mortgage Loan Majority Noteholder provided for in
Section 8 of the Xxxxxxxx Place Intercreditor Agreement.
"Xxxxxxxx Place Custodial Account" shall mean the segregated account
or accounts created and maintained by the Master Servicer pursuant to Section
3.04C on behalf of the Xxxxxxxx Place Noteholders, which shall be entitled
"[NAME OF MASTER SERVICER], as Master Servicer, in trust for [NAMES OF XXXXXXXX
PLACE NOTEHOLDERS], as their interests may appear".
"Xxxxxxxx Place Intercreditor Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"Xxxxxxxx Place Lead Lender" shall mean, as of any date of
determination, the "Lead Lender" under the Xxxxxxxx Place Intercreditor
Agreement.
"Xxxxxxxx Place Loan Pair" shall have the meaning assigned thereto in
the Preliminary Statement (and shall include any successor REO Mortgage Loans
with respect to the Xxxxxxxx Place Mortgage Loans).
"Xxxxxxxx Place Mortgage Loan" shall mean the Xxxxxxxx Place Trust
Mortgage Loan or the Xxxxxxxx Place Non-Trust Mortgage Loan, as applicable.
"Xxxxxxxx Place Mortgaged Property" shall mean the mortgaged property
identified on the Trust Mortgage Loan Schedule as Xxxxxxxx Place Apartments.
"Xxxxxxxx Place Non-Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Xxxxxxxx Place Non-Trust Mortgage Loan Noteholder" shall mean the
holder (or, collectively, if applicable, the holders) of the Xxxxxxxx Place
Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto) and the "Co-Lender" under the Xxxxxxxx Place Intercreditor Agreement.
"Xxxxxxxx Place Non-Trust Mortgage Loan Majority Noteholder" shall
mean the "Majority Co-Lender" under the Xxxxxxxx Place Intercreditor Agreement.
"Xxxxxxxx Place Noteholders" shall mean the holder of the Mortgage
Note for the Xxxxxxxx Place Trust Mortgage Loan, together with the Xxxxxxxx
Place Non-Trust Mortgage Loan Noteholder.
"Xxxxxxxx Place REO Account" shall mean the segregated account or
accounts created and maintained by the Special Servicer pursuant to Section 3.16
on behalf of the Xxxxxxxx Place Noteholders, which shall be entitled "[NAME OF
SPECIAL SERVICER], as Special Servicer, in trust for [NAMES OF XXXXXXXX PLACE
NOTEHOLDERS], as their interests may appear".
-44-
"Xxxxxxxx Place REO Mortgage Loan" shall mean any REO Mortgage Loan
relating to a Xxxxxxxx Place Mortgage Loan.
"Xxxxxxxx Place REO Property" shall mean the Xxxxxxxx Place Mortgaged
Property, at such time that it becomes an REO Property hereunder.
"Xxxxxxxx Place REO Trust Mortgage Loan" shall mean any REO Trust
Mortgage Loan relating to the Xxxxxxxx Place Trust Mortgage Loan.
"Xxxxxxxx Place Specially Designated Servicing Action" shall mean a
Specially Designated Servicing Action with respect to the Xxxxxxxx Place Loan
Pair (as if it was a single Serviced Mortgage Loan), the Xxxxxxxx Place Trust
Mortgage Loan or any related REO Property.
"Xxxxxxxx Place Threshold Event" shall mean a "Threshold Event" under
the Xxxxxxxx Place Intercreditor Agreement.
"Xxxxxxxx Place Trust Mortgage Loan" shall have the meaning assigned
thereto in the Preliminary Statement, which mortgage loan is identified on the
Trust Mortgage Loan Schedule by loan number 12 and is, together with the
Xxxxxxxx Place Non-Trust Mortgage Loans, secured by the same Mortgage(s) on the
Xxxxxxxx Place Mortgaged Property.
"Late Collections" shall mean: (a) with respect to any Trust Mortgage
Loan, all amounts Received by the Trust in connection therewith during any
related Collection Period, whether as payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or otherwise, which represent late collections of
the principal and/or interest portions of a Monthly Payment (other than a
Balloon Payment) or an Assumed Monthly Payment in respect of such Trust Mortgage
Loan due or deemed due on a Due Date in a previous related Collection Period, or
on a Due Date coinciding with or preceding the Cut-off Date, and not previously
recovered; and (b) with respect to any REO Trust Mortgage Loan, all amounts
Received by the Trust in connection with the related REO Property during any
related Collection Period, whether as Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, REO Revenues or otherwise, which represent late
collections of the principal and/or interest portions of a Monthly Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in respect of the
predecessor Trust Mortgage Loan, or the principal and/or interest portions of an
Assumed Monthly Payment in respect of such REO Trust Mortgage Loan, due or
deemed due on a Due Date in a previous related Collection Period and not
previously recovered.
"LBHI" shall mean Xxxxxx Brothers Holdings Inc., doing business as
Xxxxxx Capital, a Division of Xxxxxx Brothers Holdings Inc., or its successor in
interest.
"LBHI/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of March 23, 2004, between the
LBHI Mortgage Loan Seller and the Depositor.
"LBHI Mortgage Loan Seller" shall mean LBHI.
"LBHI Trust Mortgage Loan" shall mean any Trust Mortgage Loan
transferred by the LBHI Mortgage Loan Seller to the Depositor, pursuant to the
LBHI/Depositor Mortgage Loan Purchase Agreement.
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"Legal Final Distribution Date" shall mean, with respect to any REMIC
I Regular Interest, any REMIC II Regular Interest, any Class of Regular Interest
Certificates or any particular REMIC III Component of a Class of Interest-Only
Certificates, the "latest possible maturity date" thereof, calculated solely for
purposes of satisfying Treasury regulations section 1.860G-1(a)(4)(iii).
"Xxxxxx Brothers" shall mean Xxxxxx Brothers Inc. or its successor in
interest.
"Xxxxxx Mortgage Loan Seller" shall mean the LBHI Mortgage Loan Seller
or the LUBS Mortgage Loan Seller.
"Xxxxxx Trust Mortgage Loan" shall mean any LBHI Trust Mortgage Loan
or any LUBS Trust Mortgage Loan.
"Liquidation Event" shall mean: (a) 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)
in the case of a Serviced Trust Mortgage Loan, such Mortgage Loan is (A)
repurchased by the Depositor pursuant to Section 2.03 or by or on behalf of the
UBS Mortgage Loan Seller pursuant to the UBS/Depositor Mortgage Loan Purchase
Agreement, (B) transferred in connection with the exchange by all the
Certificateholders of their Certificates for all the Mortgage Loans and each REO
Property remaining in the Trust Fund pursuant to Section 9.01, (C) purchased by
the Depositor, Xxxxxx Brothers, the Special Servicer, a Controlling Class
Certificateholder or the Master Servicer pursuant to Section 9.01 or (D)
purchased by the Majority Controlling Class Certificateholder(s), an assignee
thereof or the Special Servicer or is otherwise sold pursuant to Section 3.18,
(iv) such Mortgage Loan is purchased by the holder of a related mezzanine loan
in connection with a Mortgage Loan default, as set forth in the related
intercreditor agreement, (v) in the case of a Serviced Combination Trust
Mortgage Loan or a Serviced Pari Passu Non-Trust Mortgage Loan, such Mortgage
Loan is purchased by a related (or, if applicable, another related) Non-Trust
Mortgage Loan Noteholder or its designee pursuant to the related Co-Lender
Agreement, or (vi) in the case of the GIC Office Trust Mortgage Loan, the
purchase of such Trust Mortgage Loan by a purchase option holder in accordance
with Section 3.18 of the GIC Office Servicing Agreement as currently in effect
(or any comparable section of any successor GIC Office Servicing Agreement); and
(b) with respect to any REO Property (and the related REO Mortgage Loan(s)), any
of the following events--(i) a Final Recovery Determination is made with respect
to such REO Property, (ii) such REO Property is purchased by the Depositor
pursuant to Section 2.03 or by or on behalf of the UBS Mortgage Loan Seller
pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement, or (iii) such
REO Property is purchased by the Depositor, Xxxxxx Brothers, the Special
Servicer, a Controlling Class Certificateholder or the Master Servicer, or such
REO Property is acquired in exchange for all of the Certificates, in any event
pursuant to Section 9.01.
"Liquidation Expenses" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in connection with the liquidation of any
Specially Serviced Mortgage Loan pursuant to Sections 3.09 or in connection with
the sale of a Defaulted Trust Mortgage Loan or Administered REO Property in
accordance with Section 3.18, or in connection with the final payoff of a
Corrected Mortgage Loan (including legal fees and expenses, committee or referee
fees and, if applicable, brokerage commissions and conveyance taxes).
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"Liquidation Fee" shall mean the fee designated as such in, and
payable to the Special Servicer in connection with certain specified events in
respect of a Specially Serviced Mortgage Loan or an Administered REO Property
pursuant to, Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced Trust Mortgage Loan or Administered REO Property as to which a
Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds, Condemnation Proceeds and REO Revenues) Received by the
Trust (or, in the case of the Serviced Loan Combination or any related
Administered REO Property, collected on behalf of the Trust and the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) in connection with: (i) the full
or partial liquidation of a Mortgaged Property or other collateral constituting
security for a defaulted Mortgage Loan, through trustee's sale, foreclosure
sale, REO Disposition or otherwise, exclusive of any portion thereof required to
be released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (ii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iii) the
purchase of a Defaulted Trust Mortgage Loan by the Majority Controlling Class
Certificateholder(s), an assignee thereof or the Special Servicer, or other sale
thereof, pursuant to Section 3.18; (iv) the repurchase of a Trust Mortgage Loan
or REO Property by the Depositor pursuant to Section 2.03 or by or on behalf of
the UBS Mortgage Loan Seller pursuant to the UBS/Depositor Mortgage Loan
Purchase Agreement; (v) the purchase of a Trust Mortgage Loan or REO Property by
the Depositor, Xxxxxx Brothers, the Special Servicer, a Controlling Class
Certificateholder or the Master Servicer, or the acquisition thereof in exchange
for all the Certificates, in any event pursuant to Section 9.01; (vi) the
purchase of a Trust Mortgage Loan by the holder of a related mezzanine loan on
behalf of the related Mortgagor in connection with a Trust Mortgage Loan
default, as set forth in the related intercreditor agreement; (vii) in the case
of a Serviced Combination Trust Mortgage Loan or a Serviced Pari Passu Non-Trust
Mortgage Loan, the purchase of such Trust Mortgage Loan by a related Subordinate
Non-Trust Mortgage Loan Noteholder or its designee pursuant to the related
Co-Lender Agreement; or (viii) in the case of the GIC Office Trust Mortgage
Loan, the purchase of such Trust Mortgage Loan by a purchase option holder in
accordance with Section 3.18 of the GIC Office Servicing Agreement as currently
in effect (or any comparable section of any successor GIC Office Servicing
Agreement).
"Loan Combination" shall mean either the 000 Xxxxx Xxxxxx Loan Pair,
the GIC Office Loan Group, the Somerset Collection Loan Group, the Xxxxxxxx
Place Loan Pair or the Cumberland Place Loan Pair, as applicable.
"Loan Combination Custodial Account" shall mean the 000 Xxxxx Xxxxxx
Custodial Account, the Somerset Collection Custodial Account, the Xxxxxxxx Place
Custodial Account or the Cumberland Place Custodial Account, as applicable.
"Loan Combination REO Account" shall mean the 000 Xxxxx Xxxxxx REO
Account, the Somerset Collection REO Account, the Xxxxxxxx Place REO Account or
the Cumberland Place REO Account, as applicable.
"Loan Combination Servicing Reports" shall mean, with respect to each
Serviced Loan Combination, each of the CMSA Delinquent Loan Status Report, CMSA
Historical Loan Modification and Corrected Mortgage Loan Report, CMSA Loan Level
Reserve/LOC Reserve, CMSA Historical Liquidation Report, CMSA REO Status Report,
Loan Payoff Notification Report, CMSA Loan Periodic
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Update File, CMSA Property File, CMSA Financial File, CMSA Loan Setup File, CMSA
Servicer Watch List, CMSA Operating Statement Analysis, CMSA NOI Adjustment
Worksheet and CMSA Comparative Financial Status Report, each as may be modified
to reflect the fact that only the related Mortgaged Property or Properties or
any related REO Property or Properties, as the case may be, shall be the subject
of such report.
"Loan Combination-Specific Special Servicer" shall have the meaning
assigned thereto in Section 7.01(c).
"Loan Payoff Notification Report" shall mean a report containing
substantially the information described in Exhibit E attached hereto, and
setting forth for each Serviced Mortgage Loan as to which written notice of
anticipated payoff has been received by the Master Servicer as of the related
Determination Date preceding the delivery of such report, among other things,
the loan number, the property name, the ending scheduled loan balance for the
Collection Period ending on such Determination Date, the expected date of
payment, the expected related Distribution Date and the estimated amount of the
Yield Maintenance Charge or Prepayment Premium due (if any).
"Lockout Period" shall mean, with respect to any Mortgage Loan that
prohibits the Mortgagor from prepaying such loan until a date specified in the
related Mortgage Note or other loan document, the period from the Closing Date
until such specified date.
"Loss Reimbursement Amount" shall mean:
(a) with respect to any REMIC I Regular Interest, for any Distribution
Date, the excess, if any, of (i) the total amount of all reductions, if
any, made in the related Uncertificated Principal Balance (without any
corresponding deemed distribution of principal) on all prior Distribution
Dates, if any, pursuant to Section 4.04(c), over (ii) the total amount
reimbursed to REMIC II with respect to any Loss Reimbursement Amount for
such REMIC I Regular Interest on all prior Distribution Dates, if any,
pursuant to Section 4.01(k);
(b) with respect to any REMIC II Regular Interest, for any
Distribution Date, the excess, if any, of (i) the total amount of all
reductions, if any, made in the related Uncertificated Principal Balance
(without any corresponding deemed distribution of principal) on all prior
Distribution Dates, if any, pursuant to Section 4.04(b), over (ii) the sum
of (A) the total amount reimbursed to REMIC III with respect to any Loss
Reimbursement Amount for such REMIC II Regular Interest on all prior
Distribution Dates, if any, pursuant to Section 4.01(j), plus (B) the total
amount reinstated to the Uncertificated Principal Balance of such REMIC II
Regular Interest on all prior Distribution Dates, if any, pursuant to
Section 4.05(c); and
(c) with respect to any Class of Principal Balance Certificates, for
any Distribution Date, the total amount of (i) all reductions, if any, made
in the related Class Principal Balance (without any corresponding
distribution of principal) on all prior Distribution Dates, if any,
pursuant to Section 4.04(a), over (ii) the sum of (A) the total amount of
such reductions reimbursed to the Holders of such Class of Certificates
with respect to any related Loss Reimbursement Amount on all prior
Distribution Dates, if any, pursuant to Section 4.01(a) or Section 4.01(b),
as applicable, plus (B) the total amount of such reductions reinstated to
the Class Principal Balance of such Class of Certificates on all prior
Distribution Dates, if any, pursuant to Section 4.05(a).
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"LUBS/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of March 23, 2004, between
LBHI, LUBS Inc. as mortgage loan seller and the Depositor.
"LUBS Mortgage Loan Seller" shall mean LUBS, Inc. or its successor in
interest.
"LUBS Trust Mortgage Loan" shall mean any Trust Mortgage Loan
transferred by the LUBS Mortgage Loan Seller to the Depositor, pursuant to the
LUBS/Depositor Mortgage Loan Purchase Agreement.
"Majority Controlling Class Certificateholder(s)" shall mean any
single Holder or group of Holders (or any single Certificate Owner or group of
Certificate Owners) of Certificates evidencing a majority of the Voting Rights
allocated to the Controlling Class.
"Master Servicer" shall mean Midland, in its capacity as master
servicer hereunder, or any successor master servicer appointed as herein
provided.
"Master Servicer Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Master Servicer Backup Certification" shall have the meaning assigned
thereto in Section 8.15(h).
"Master Servicer Remittance Amount" shall mean, with respect to any
Trust Master Servicer Remittance Date, an amount equal to: (a) the sum of the
aggregate amount of all payments and other collections on or with respect to the
Trust Mortgage Loans and any related REO Properties that (i) were Received by
the Trust as of the close of business on the immediately preceding applicable
Determination Date and (ii) are on deposit or are required to be on deposit in
the Pool Custodial Account as of 12:00 noon (New York City time) on such Trust
Master Servicer Remittance Date, including any such payments and other
collections transferred or required to be transferred to the Pool Custodial
Account from the Pool REO Account (if established) and/or a Loan Combination
Custodial Account, net of (b) the portion of the aggregate amount described in
clause (a) of this definition that represents one or more of the following--(i)
Monthly Payments that are due on a Due Date in a calendar month subsequent to
the calendar month in which such Trust Master Servicer Remittance Date occurs,
(ii) any amount payable or reimbursable to any Person from the Pool Custodial
Account pursuant to clauses (ii) through (xviii) of Section 3.05(a), (iii) any
Excess Liquidation Proceeds and (iv) any amounts deposited in the Pool Custodial
Account in error.
"Master Servicer Remittance Date" shall mean, individually and
collectively, as applicable in the context used, (i) the 000 Xxxxx Xxxxxx Master
Servicer Remittance Date with respect to the 000 Xxxxx Xxxxxx Loan Pair and all
related matters, (ii) the Somerset Collection Master Servicer Remittance Date
with respect to the Somerset Collection Loan Group and all related matters, and
(iii) the Trust Master Servicer Remittance Date with respect to the Mortgage
Pool (exclusive of the 000 Xxxxx Xxxxxx Trust Mortgage Loan and any 000 Xxxxx
Xxxxxx REO Trust Mortgage Loan and, further, exclusive of the Somerset
Collection Trust Mortgage Loan and any Somerset Collection REO Trust Mortgage
Loan) and all related matters.
"Master Servicing Fee" shall mean, with respect to each Serviced
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto) and the
GIC Office Trust Mortgage Loan and
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any GIC Office REO Trust Mortgage Loan, the fee designated as such and payable
to the Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate" shall mean: (a) with respect to each
Serviced Trust Mortgage Loan (and any successor REO Trust Mortgage Loan with
respect thereto), a rate per annum equal to the related Administrative Cost Rate
minus the Trustee Fee Rate; (b) with respect to the GIC Office Trust Mortgage
Loan (or any successor REO Trust Mortgage Loan with respect thereto), 0.015% per
annum; and (c) with respect to each Serviced Non-Trust Mortgage Loan (and any
successor REO Mortgage Loan with respect thereto), 0.015% per annum;
"Material Breach" shall have the meaning assigned thereto in Section
2.03(a).
"Material Document Defect" shall have the meaning assigned thereto in
Section 2.03(a).
"Midland" shall mean Midland Loan Services, Inc. or its successor in
interest.
"Modified Loan" shall mean any Serviced Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing Monthly
Payments current with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related loan documents,
results in a release of the lien of the related Mortgage on any material
portion of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount, or the delivery of substitute real property
collateral with a fair market value (as is), that is not less than the fair
market value (as is) of the property to be released, as determined by an
appraisal delivered to the Special Servicer (at the expense of the related
Mortgagor and upon which the Special Servicer may conclusively rely); or
(c) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or
materially reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment" shall mean, with respect to any Mortgage Loan, as of
any Due Date, the scheduled monthly debt service payment (or, in the case of an
ARD Mortgage Loan after its Anticipated Repayment Date, the monthly debt service
payment required to be paid on a current basis) on such Mortgage Loan that is
actually payable by the related Mortgagor from time to time under the terms of
the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, extension, waiver or amendment granted
or agreed to by the Special Servicer pursuant to Section 3.20 (or, in the case
of the GIC Office Trust Mortgage Loan, by the applicable GIC Office Servicer
pursuant to the GIC Office Servicing Agreement), including any Balloon Payment
payable in respect of such Mortgage Loan on such Due Date; provided that the
Monthly Payment due in respect of any Mortgage Loan shall not include Default
Interest; and provided, further, that the Monthly Payment due in respect of any
ARD Mortgage Loan after its Anticipated Repayment Date shall not include
Additional Interest;
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and provided, further, that if the related loan documents for any Serviced Loan
Combination provide for a single monthly debt service payment for the entire
such Loan Combination, then the Monthly Payment for each Mortgage Loan
comprising such Loan Combination for any Due Date shall be that portion of the
monthly debt service payment for such Loan Combination and such Due Date that
is, in accordance with the related loan documents and/or the related Co-Lender
Agreement, in the absence of default, allocable to interest at the related
Mortgage Rate on and/or principal of the subject Mortgage Loan comprising such
Loan Combination.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or its successor
in interest. If neither such rating agency nor any successor remains in
existence, "Moody's" shall be deemed to refer to such other nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the Trustee, any
Fiscal Agent, the Master Servicer and the Special Servicer, and specific ratings
of Xxxxx'x Investors Service, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Mortgage" shall mean, with respect to any Mortgage Loan, the
mortgage, deed of trust, deed to secure debt or similar instrument that secures
the related Mortgage Note and creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean:
(a) with respect to any Serviced Trust Mortgage Loan and, in the case
of each Serviced Loan Combination, also with respect to each Serviced Non-Trust
Mortgage Loan that is part of such Loan Combination, the following documents
collectively (which, in the case of each Serviced Loan Combination, except for
the Mortgage Notes referred to in clause (a)(i) of this definition and any
modifications thereof referred to in clause (a)(vi) of this definition, relate
to the entire such Loan Combination):
(i) (A) the original executed Mortgage Note for such Trust Mortgage
Loan, endorsed (without recourse, representation or warranty,
express or implied) to the order of "Xxxxx Fargo Bank, N.A., as
trustee for the registered holders of LB-UBS Commercial Mortgage
Trust 2004-C2, Commercial Mortgage Pass-Through Certificates,
Series 2004-C2" or in blank, and further showing a complete,
unbroken chain of endorsement from the originator (if such
originator is other than the related Mortgage Loan Seller) (or,
alternatively, if the original executed Mortgage Note has been
lost, a lost note affidavit and indemnity with a copy of such
Mortgage Note), and (B) in the case of each Serviced Loan
Combination, a copy of the executed Mortgage Note for each
Serviced Non-Trust Mortgage Loan in such Loan Combination;
(ii) an original or copy of the Mortgage, together with originals or
copies of any and all intervening assignments thereof, in each
case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon;
(iii) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments
thereof, in each case (unless the particular item
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has not been returned from the applicable recording office) with
evidence of recording indicated thereon;
(iv) an original executed assignment, in recordable form (except for
recording information not yet available if the instrument being
assigned has not been returned from the applicable recording
office), of (A) the Mortgage and (B) any related Assignment of
Leases (if such item is a document separate from the Mortgage),
in favor of "Xxxxx Fargo Bank, N.A., in its capacity as trustee
for the registered holders of LB-UBS Commercial Mortgage Trust
2004-C2, Commercial Mortgage Pass-Through Certificates, Series
2004-C2" (or, in the case of a Serviced Loan Combination, in
favor of "Xxxxx Fargo Bank, N.A., in its capacity as trustee for
the registered holders of LB-UBS Commercial Mortgage Trust
2004-C2, Commercial Mortgage Pass-Through Certificates, Series
2004-C2, and in its capacity as lead lender on behalf of the
[IDENTIFY RELATED SERVICED NON-TRUST MORTGAGE LOAN
NOTEHOLDER(S)]") (or, in each case, a copy thereof, certified to
be the copy of such assignment submitted for recording);
(v) an original or a copy of the assignment of all unrecorded
documents relating to such Trust Mortgage Loan, in favor of
"Xxxxx Fargo Bank, N.A., as trustee for the registered holders of
LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage
Pass-Through Certificates, Series 2004-C2" (or, in the case of a
Serviced Loan Combination, in favor of "Xxxxx Fargo Bank, N.A.,
in its capacity as trustee for the registered holders of LB-UBS
Commercial Mortgage Trust 2004-C2, Commercial Mortgage
Pass-Through Certificates, Series 2004-C2, and in its capacity as
lead lender on behalf of the [IDENTIFY RELATED SERVICED NON-TRUST
MORTGAGE LOAN NOTEHOLDER(S)]");
(vi) originals or copies of final written modification agreements in
those instances where the terms or provisions of the Mortgage
Note for such Trust Mortgage Loan (and/or, if applicable, the
Mortgage Note for a related Serviced Non-Trust Mortgage Loan) or
the related Mortgage have been modified as to a monetary term or
other material term thereof, in each case (unless the particular
item has not been returned from the applicable recording office)
with evidence of recording indicated thereon if the instrument
being modified is a recordable document;
(vii) the original or a copy of the policy or certificate of lender's
title insurance issued in connection with such Trust Mortgage
Loan (or, if such policy has not been issued, a "marked-up" pro
forma title policy marked as binding and countersigned by the
title insurer or its authorized agent, or an irrevocable, binding
commitment to issue such title insurance policy);
(viii) filed copies (with evidence of filing) of any prior effective
UCC Financing Statements in favor of the originator of such Trust
Mortgage Loan or in favor of any assignee prior to the Trustee
(but only to the extent the related Mortgage Loan Seller had
possession of such UCC Financing Statements prior to the Closing
Date) and an original assignment thereof, as appropriate, in form
suitable for
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filing, in favor of "Xxxxx Fargo Bank, N.A., in its capacity as
trustee for the registered holders of LB-UBS Commercial Mortgage
Trust 2004-C2, Commercial Mortgage Pass-Through Certificates,
Series 2004-C2" (or, in the case of a Serviced Loan Combination,
in favor of "Xxxxx Fargo Bank, N.A., in its capacity as trustee
for the registered holders of LB-UBS Commercial Mortgage Trust
2004-C2, Commercial Mortgage Pass-Through Certificates, Series
2004-C2, and in its capacity as lead lender on behalf of the
[IDENTIFY RELATED SERVICED NON-TRUST MORTGAGE LOAN
NOTEHOLDER(S)]");
(ix) an original or copy of the Ground Lease relating to such Trust
Mortgage Loan, if any;
(x) an original or copy of the loan agreement for such Trust Mortgage
Loan, if any;
(xi) an original of the related guaranty of payment under, or a copy
of the original letter of credit in connection with, such Trust
Mortgage Loan, if any;
(xii) an original or copy of the lock-box agreement or cash management
agreement relating to such Trust Mortgage Loan, if any;
(xiii) an original or copy of the environmental indemnity from the
related Mortgagor, if any;
(xiv) an original or copy of the related security agreement (if such
item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments thereof;
(xv) an original assignment of the related security agreement (if such
item is a document separate from the Mortgage and if such item is
not included in the assignment described in clause (a)(iv) or
clause (a)(v) of this definition), in favor of "Xxxxx Fargo Bank,
N.A., in its capacity as trustee for the registered holders of
LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage
Pass-Through Certificates, Series 2004-C2" (or, in the case of a
Serviced Loan Combination, in favor of "Xxxxx Fargo Bank, N.A.,
in its capacity as trustee for the registered holders of LB-UBS
Commercial Mortgage Trust 2004-C2, Commercial Mortgage
Pass-Through Certificates, Series 2004-C2, and in its capacity as
lead lender on behalf of the [IDENTIFY RELATED SERVICED NON-TRUST
MORTGAGE LOAN NOTEHOLDER(S)]");
(xvi) if such Trust Mortgage Loan is a Serviced Combination Trust
Mortgage Loan, a copy of the related Co-Lender Agreement;
(xvii) in the case of any Trust Mortgage Loan as to which there exists
a related mezzanine loan, the related intercreditor agreement;
(xviii) an original or copy of any related Environmental Insurance
Policy; and
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(xix) with respect to hospitality properties, a signed copy of the
franchise agreement (if any) and franchisor comfort letter (if
any);
(b) with respect to the GIC Office Trust Mortgage Loan, the following
documents collectively:
(i) the original executed Mortgage Note for such Trust Mortgage
Loan, endorsed (without recourse, representation or
warranty, express or implied) to the order of "Xxxxx Fargo
Bank, N.A., as trustee for the registered holders of LB-UBS
Commercial Mortgage Trust 2004-C2, Commercial Mortgage
Pass-Through Certificates, Series 2004-C2" or in blank, and
further showing a complete, unbroken chain of endorsement
from the originator (if such originator is other than the
related Mortgage Loan Seller) (or, alternatively, if the
original executed Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note);
(ii) a copy of the executed GIC Office Co-Lender Agreement; and
(iii) a copy of the GIC Office Servicing Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or a Custodian on its behalf for documents
described in clauses (a)(vi) and (a)(ix) through (a)(xix) of this definition,
shall be deemed to include such documents only to the extent the Trustee or a
Custodian on its behalf has actual knowledge of their existence
"Mortgage Loan" shall mean any Trust Mortgage Loan or Non-Trust
Mortgage Loan. As used herein, the term "Mortgage Loan" includes the related
Mortgage Note, Mortgage and other security documents contained in the related
Mortgage File or otherwise held on behalf of the Trust and/or any affected
Non-Trust Mortgage Loan Noteholder(s), as applicable, including, in the case of
the GIC Office Loan Group, any such documents held by or on behalf of the GIC
Office Non-Trust Mortgage Loan Noteholders.
"Mortgage Loan Origination Documents" shall mean, with respect to any
Serviced Trust Mortgage Loan, any of the following documents (other than any
document that constitutes part of the Mortgage File for such Serviced Trust
Mortgage Loan), if applicable with respect to such Serviced Trust Mortgage Loan:
final appraisal, final survey, final engineering report, final environmental
report, final seismic report, rent roll, property operating statement, financial
statements (if obtained), cash management agreement, property management
agreement, major tenant leases representing more than 25% of annual mortgaged
property income, borrower organizational documents, escrow and reserve
agreements, final loan documents required to be executed and delivered by the
borrower at the closing of such Serviced Trust Mortgage Loan and any final legal
opinions required to be delivered by the borrower's counsel at the closing of
such Serviced Trust Mortgage Loan that, in all of the foregoing cases: (a)
were in fact delivered in connection with the origination of such Serviced Trust
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Mortgage Loan and (b) are in the possession or under the control of the
Depositor (in the case of the Xxxxxx Trust Mortgage Loans) or the UBS Mortgage
Loan Seller (in the case of the UBS Trust Mortgage Loans).
"Mortgage Loan Purchase Agreements" shall mean the LBHI/Depositor
Mortgage Loan Purchase Agreement, the LUBS/Depositor Mortgage Loan Purchase
Agreement and the UBS/Depositor Mortgage Loan Purchase Agreement.
"Mortgage Loan Seller" shall mean the LBHI Mortgage Loan Seller, the
LUBS Mortgage Loan Seller or the UBS Mortgage Loan Seller, as applicable.
"Mortgage Note" shall mean the original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool" shall mean all of the Trust Mortgage Loans and any REO
Trust Mortgage Loans, collectively.
"Mortgage Pool Data Update Report" shall mean, with respect to any
Distribution Date, a report (which may be included as part of the Distribution
Date Statement), prepared by the Trustee, containing information regarding the
Trust Mortgage Loans as of the end of the related Collection Period, which
report shall contain substantially the categories of information regarding the
Trust Mortgage Loans set forth on Annexes A-1 through A-4 to the Prospectus
Supplement (calculated, where applicable, on the basis of the most recent
relevant information provided by the Mortgagors to the Master Servicer or the
Special Servicer, as the case may be, and by the Master Servicer or the Special
Servicer, as the case may be, to the Trustee), and which information shall be
presented in tabular format substantially similar to the format utilized on such
annexes and shall also include a loan-by-loan listing (in descending balance
order) showing loan number, property type, location, unpaid principal balance,
Mortgage Rate, paid-through date, maturity date, gross interest portion of the
Monthly Payment, principal portion of the Monthly Payment, and any Prepayment
Premium or Yield Maintenance Charge received.
"Mortgage Rate" shall mean, with respect to each Mortgage Loan (and
any successor REO Mortgage Loan with respect thereto), the related annualized
rate at which interest is scheduled (in the absence of a default) to accrue on
such Mortgage Loan from time to time in accordance with the related Mortgage
Note and applicable law, as such rate may be modified in accordance with Section
3.20 (or, in the case of the GIC Office Trust Mortgage Loan, by the applicable
GIC Office Servicer in accordance with the GIC Office Servicing Agreement) or in
connection with a bankruptcy, insolvency or similar proceeding involving the
related Mortgagor. In the case of each ARD Mortgage Loan, the related Mortgage
Rate shall increase in accordance with the related Mortgage Note if the
particular loan is not paid in full by its Anticipated Repayment Date.
"Mortgaged Property" shall mean the real property subject to the lien
of a Mortgage.
"Mortgagor" shall mean, individually and collectively, as the context
may require, the obligor or obligors under a Mortgage Loan, including any Person
that has not signed the related
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Mortgage Note but owns an interest in the related Mortgaged Property, which
interest has been encumbered to secure such Mortgage Loan, but excluding
guarantors.
"Net Aggregate Prepayment Interest Shortfall" shall mean, with respect
to any Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred with respect to the Mortgage Pool in
connection with Principal Prepayments and/or, insofar as they result from the
application of Insurance Proceeds and/or Condemnation Proceeds, other early
recoveries of principal Received by the Trust on the Trust Mortgage Loans
(including Specially Serviced Trust Mortgage Loans) during the related
Collection Period, exceeds (b) the aggregate amount deposited by the Master
Servicer in the Collection Account for such Distribution Date pursuant to
Section 3.19(a) in connection with such Prepayment Interest Shortfalls.
"Net Default Charges" shall have, with respect to any Serviced Trust
Mortgage Loan or REO Trust Mortgage Loan, the meaning assigned thereto in
Section 3.26(a).
"Net Investment Earnings" shall mean, with respect to any Investment
Account for any related Investment Period, the amount, if any, by which the
aggregate of all interest and other income realized during such Investment
Period on funds held in such Investment Account (exclusive, in the case of a
Servicing Account, a Reserve Account or the Defeasance Deposit Account, of any
portion of such interest or other income payable to a Mortgagor in accordance
with the related loan documents and applicable law), exceeds the aggregate of
all losses, if any, incurred during such Investment Period in connection with
the investment of such funds in accordance with Section 3.06 (exclusive, in the
case of a Servicing Account, a Reserve Account or the Defeasance Deposit
Account, of any portion of such losses that were incurred in connection with
investments made for the benefit of a Mortgagor).
"Net Investment Loss" shall mean, with respect to any Investment
Account for any related Investment Period, the amount by which the aggregate of
all losses, if any, incurred during such Investment Period in connection with
the investment of funds held in such Investment Account in accordance with
Section 3.06 (exclusive, in the case of a Servicing Account, a Reserve Account
or the Defeasance Deposit Account, of any portion of such losses that were
incurred in connection with investments made for the benefit of a Mortgagor),
exceeds the aggregate of all interest and other income realized during such
Investment Period on such funds (exclusive, in the case of a Servicing Account,
a Reserve Account or the Defeasance Deposit Account, of any portion of such
interest or other income payable to a Mortgagor in accordance with the related
loan documents and applicable law).
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds received with respect to any Specially Serviced Mortgage
Loan or Administered REO Property, over the amount of all Liquidation Expenses
incurred with respect thereto.
"Net Prepayment Consideration" shall mean the Prepayment Consideration
Received by the Trust (or, if applicable, on behalf of a Serviced Non-Trust
Mortgage Loan Noteholder) with respect to any Mortgage Loan or REO Mortgage
Loan, net of any Workout Fee or Liquidation Fee payable therefrom.
"New Lease" shall mean any lease of an Administered REO Property
entered into at the direction of the Special Servicer, including any lease
renewed, modified or extended on behalf of the Trustee and, in the case of a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s).
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"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean:
(1) any P&I Advance previously made or proposed to be made in respect
of any Trust Mortgage Loan or REO Trust Mortgage Loan by the
Master Servicer, the Trustee or any Fiscal Agent, which P&I
Advance such party has determined in its reasonable, good faith
judgment (or, with respect to any P&I Advances proposed to be
made on a Performing Trust Mortgage Loan, the Special Servicer
has determined, in accordance with the Servicing Standard and
with the consent of the Controlling Class Representative), will
not be ultimately recoverable from late payments, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds, or any
other recovery on or in respect of such Trust Mortgage Loan or
REO Trust Mortgage Loan, as the case may be; provided that, if
any of the GIC Office Pari Passu Non-Trust Mortgage Loans is
securitized as part of a rated commercial mortgage securitization
similar to the commercial mortgage securitization contemplated by
this Agreement, and if the Master Servicer receives written
notice in accordance with the GIC Office Co-Lender Agreement that
a party (with respect to such other commercial mortgage
securitization) responsible for making delinquency advances
similar to P&I Advances hereunder on any such mortgage loan has
determined, in accordance with the requirements of the related
securitization agreement, that any such delinquency advance made
or to be made with respect to such securitized GIC Office Pari
Passu Non-Trust Mortgage Loan (or any successor REO Mortgage Loan
with respect thereto) would be nonrecoverable out of collections
on such Mortgage Loan (or such REO Mortgage Loan), then (for so
long as the Master Servicer has actual knowledge that delinquency
advances are not being made with respect to such securitized GIC
Office Pari Passu Non-Trust Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto) in connection with such other
commercial mortgage securitization by reason of such
nonrecoverability determination) any P&I Advance that is required
to be made hereunder with respect to the GIC Office Trust
Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto) shall be deemed to be a Nonrecoverable P&I
Advance (unless any such P&I Advances required to be made
hereunder with respect to the GIC Office Trust Mortgage Loan are
again deemed to be recoverable, including based on the Master
Servicer having received written notice to such effect in
accordance with the GIC Office Co-Lender Agreement); and
(2) any P&I Advance previously made or proposed to be made in respect
of any Specially Serviced Trust Mortgage Loan or any REO Trust
Mortgage Loan that the Special Servicer has determined, in
accordance with the Servicing Standard, will not be ultimately
recoverable from late payments, Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds, or any other recovery on or in
respect of such Specially Serviced Trust Mortgage Loan or REO
Trust Mortgage Loan, as the case may be.
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"Nonrecoverable Servicing Advance" shall mean:
(1) any Servicing Advance previously made or proposed to be made in
respect of any Serviced Mortgage Loan or Administered REO
Property by the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, which Servicing Advance such party
has determined, in its reasonable, good faith judgment (or, with
respect to Servicing Advances proposed to be made on a Performing
Serviced Mortgage Loan by the Master Servicer, the Trustee or any
Fiscal Agent, the Special Servicer has determined, in accordance
with the Servicing Standard and with the consent of the
Controlling Class Representative), will not be ultimately
recoverable from late payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds, or any other recovery on or in
respect of such Mortgage Loan (or, if such Mortgage Loan is part
of a Serviced Loan Combination, on or in respect of such Loan
Combination) or such REO Property, as the case may be; and
(2) any Servicing Advance previously made or proposed to be made in
respect of any Specially Serviced Mortgage Loan or any
Administered REO Property, that the Special Servicer has
determined, in accordance with the Servicing Standard, will not
be ultimately recoverable from late payments, Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds, or any other
recovery on or in respect of such Specially Serviced Mortgage
Loan (or, if such Mortgage Loan is part of a Serviced Loan
Combination, on or in respect of such Loan Combination) or such
Administered REO Property, as the case may be.
"Non-Registered Certificate" shall mean any Certificate that has not
been the subject of registration under the Securities Act. As of the Closing
Date, the Class X-CL, Class X-CP, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class P, Class Q, Class S, Class T, Class R-I, Class R-II,
Class R-III and Class V Certificates are Non-Registered Certificates.
"Non-Trust Mortgage Loan" shall mean the 000 Xxxxx Xxxxxx Non-Trust
Mortgage Loan, any GIC Office Non-Trust Mortgage Loan, any Somerset Collection
Non-Trust Mortgage Loan, the Xxxxxxxx Place Non-Trust Mortgage Loan or the
Cumberland Place Non-Trust Mortgage Loan, as applicable.
"Non-Trust Mortgage Loan Noteholders" shall mean the 000 Xxxxx Xxxxxx
Non-Trust Mortgage Loan Noteholder, any GIC Office Non-Trust Mortgage Loan
Noteholder, any Somerset Collection Non-Trust Mortgage Loan Noteholder, the
Xxxxxxxx Place Non-Trust Mortgage Loan Noteholder or the Cumberland Place
Non-Trust Mortgage Loan Noteholder, as applicable.
"Non-United States Tax Person" shall mean any Person other than a
United States Tax Person.
"Offering Memorandum" shall mean the Offering Memorandum dated March
23, 2004, relating to the Class X-CL, Class X-CP, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class P, Class Q, Class S and Class T
Certificates.
"Officer's Certificate" shall mean a certificate signed by a Servicing
Officer of the Master Servicer or the Special Servicer, as the case may be, or
by a Responsible Officer of the Trustee
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or any Fiscal Agent, as the case may be, and shall mean with respect to any
other Person, a certificate signed by any of the Chairman of the Board, the Vice
Chairman of the Board, the President, any Vice President or Managing Director,
an Assistant Vice President or any other authorized officer (however
denominated) or another officer customarily performing functions similar to
those performed by any of the above designated officers or, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
"Opinion of Counsel" shall mean a written opinion of counsel, who may,
without limitation, be salaried counsel for the Depositor, the Master Servicer
or the Special Servicer, acceptable in form and delivered to the Trustee or any
other specified Person, as the case may be, except that any opinion of counsel
relating to (a) the qualification of REMIC I, REMIC II or REMIC III as a REMIC,
(b) compliance with the REMIC Provisions, (c) qualification of Grantor Trust V
as a Grantor Trust, (d) whether any act or event would cause an Adverse REMIC
Event or Adverse Grantor Trust Event, as may be applicable, or (e) the
resignation of the Master Servicer or the Special Servicer pursuant to this
Agreement, must be a written opinion of Independent counsel acceptable to and
delivered to the Trustee or any other specified Person, as the case may be.
"Original Class Notional Amount" shall mean, with respect to any Class
of Interest-Only Certificates, the initial Class Notional Amount thereof as of
the Closing Date, which shall equal $1,234,613,151, in the case of the Class
X-CL Certificates, and $1,156,061,000, in the case of the Class X-CP
Certificates.
"Original Class Principal Balance" shall mean, with respect to any
Class of Principal Balance Certificates, the initial Class Principal Balance
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Ownership Interest" shall mean, as to any Certificate, any ownership
or security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance" shall mean, as to any Trust Mortgage Loan or REO Trust
Mortgage Loan, any advance made by the Master Servicer, the Trustee or any
Fiscal Agent pursuant to Section 4.03.
"Pari Passu Mortgage Loans" shall mean the 000 Xxxxx Xxxxxx Mortgage
Loans, the GIC Office Pari Passu Mortgage Loans and the Somerset Collection Pari
Passu Mortgage Loans, as applicable.
"Pari Passu Non-Trust Mortgage Loans" shall mean the 000 Xxxxx Xxxxxx
Non-Trust Mortgage Loan, the GIC Office Pari Passu Non-Trust Mortgage Loans and
the Somerset Collection Pari Passu Non-Trust Mortgage Loan.
"Pari Passu Non-Trust Mortgage Loan Securities" shall mean any 000
Xxxxx Xxxxxx Non-Trust Mortgage Loan Securities and any Somerset Collection Pari
Passu Non-Trust Mortgage Loan Securities.
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"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates for any Interest
Accrual Period, 2.946% per annum;
(b) with respect to the Class A-2 Certificates for any Interest
Accrual Period, 3.246% per annum;
(c) with respect to the Class A-3 Certificates for any Interest
Accrual Period, 3.973% per annum;
(d) with respect to the Class A-4 Certificates for any Interest
Accrual Period, 4.367% per annum;
(e) with respect to the Class B Certificates for any Interest Accrual
Period, 4.427% per annum;
(f) with respect to the Class C Certificates for any Interest Accrual
Period, 4.437% per annum;
(g) with respect to the Class D Certificates for any Interest Accrual
Period, 4.457% per annum;
(h) with respect to the Class E Certificates for any Interest Accrual
Period, 4.487% per annum;
(i) with respect to the Class F Certificates for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the Weighted Average REMIC I
Remittance Rate for such Interest Accrual Period and (ii) 4.506% per annum;
(j) with respect to the Class G Certificates for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the Weighted Average REMIC I
Remittance Rate for such Interest Accrual Period and (ii) 4.595% per annum;
(k) with respect to the Class H Certificates for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the Weighted Average REMIC I
Remittance Rate for such Interest Accrual Period and (ii) 4.743% per annum;
(l) with respect to the Class J Certificates for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the Weighted Average REMIC I
Remittance Rate for such Interest Accrual Period and (ii) 4.841% per annum;
(m) with respect to the Class K Certificates for any Interest Accrual
Period, an annual rate equal to the Weighted Average REMIC I Remittance Rate for
such Interest Accrual Period, minus 0.192%;
(n) with respect to the Class L, Class M, Class N, Class P, Class Q,
Class S and Class T Certificates for any Interest Accrual Period, an annual rate
equal to the lesser of (i) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period and (ii) 4.716% per annum;
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(o) with respect to any Class X-XX XXXXX III Component for any
Interest Accrual Period, an annual rate equal to the excess, if any, of (i) the
REMIC II Remittance Rate with respect to such Class X-XX XXXXX III Component's
Corresponding REMIC II Regular Interest for such Interest Accrual Period, over
(ii) the greater of the Adjusted REMIC II Remittance Rate and the Alternative
Adjusted REMIC II Remittance Rate with respect to such Class X-XX XXXXX III
Component's Corresponding REMIC II Regular Interest for such Interest Accrual
Period;
(p) with respect to the Class X-CL Certificates for any Interest
Accrual Period, an annual rate equal to the weighted average (expressed as a
percentage and rounded to six decimal places) of the respective Pass-Through
Rates applicable to the Class X-XX XXXXX III Components for such Interest
Accrual Period, weighted on the basis of the respective Component Notional
Amounts of the Class X-XX XXXXX III Components outstanding immediately prior to
the related Distribution Date;
(q) with respect to any Class X-CP REMIC III Component for any
Interest Accrual Period, an annual rate equal to the excess, if any, of (i) the
lesser of the REMIC II Remittance Rate and the Adjusted REMIC II Remittance Rate
with respect to such Class X-CP REMIC III Component's Corresponding REMIC II
Regular Interest for such Interest Accrual Period, over (ii) the Alternative
Adjusted REMIC II Remittance Rate with respect to such Class X-CP REMIC III
Component's Corresponding REMIC II Regular Interest for such Interest Accrual
Period; and
(r) with respect to the Class X-CP Certificates for any Interest
Accrual Period, an annual rate equal to the weighted average (expressed as a
percentage and rounded to six decimal places) of the respective Pass-Through
Rates applicable to the Class X-CP REMIC III Components for such Interest
Accrual Period, weighted on the basis of the respective Component Notional
Amounts of the Class X-CP REMIC III Components outstanding immediately prior to
the related Distribution Date; provided that, for reporting purposes, the
Pass-Through Rate of the Class X-CP Certificates for each Interest Accrual
Period shall be calculated in accordance with the Prospectus Supplement.
The Weighted Average REMIC I Remittance Rate referenced above in this
definition is also the REMIC II Remittance Rate for each REMIC II Regular
Interest.
"Percentage Interest" shall mean: (a) with respect to any Regular
Interest Certificate, the portion of the relevant Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of such Certificate as of the Closing Date, as specified on the face
thereof, and the denominator of which is the Original Class Principal Balance or
Original Class Notional Amount, as the case may be, of the relevant Class; and
(b) with respect to a Class V or Residual Interest Certificate, the percentage
interest in distributions to be made with respect to the relevant Class, as
stated on the face of such Certificate.
"Performing Five-Year Mortgage Loan" shall mean any Five-Year Mortgage
Loan that is a Corrected Mortgage Loan or as to which a Servicing Transfer Event
has never occurred.
"Performing Serviced Mortgage Loan" shall mean any Corrected Mortgage
Loan and any Serviced Mortgage Loan as to which a Servicing Transfer Event has
never occurred.
"Performing Serviced Trust Mortgage Loan" shall mean any Trust
Mortgage Loan that is a Performing Serviced Mortgage Loan.
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"Permitted Encumbrances" shall have the meaning assigned thereto in
Section 2.04(b)(viii).
"Permitted Investments" shall mean any one or more of the following
obligations or securities (including obligations or securities of the Trustee
(in its individual capacity) if otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or
any agency or instrumentality thereof (having original maturities
of not more than 365 days), provided that such obligations are
backed by the full faith and credit of the United States. Such
obligations must be limited to those instruments that have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to
a single interest rate index plus a single fixed spread (if any),
and move proportionately with that index;
(ii) repurchase obligations with respect to any security described in
clause (i) of this definition (having original maturities of not
more than 365 days), provided that the short-term deposit or debt
obligations of the party agreeing to repurchase such obligations
are rated in the highest rating category of each of Xxxxx'x and
S&P (or, in the case of either Rating Agency (and, if applicable,
Fitch), such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates or any class of
Pari Passu Non-Trust Mortgage Loan Securities that is rated by
such Rating Agency (or, if applicable, Fitch), as evidenced in
writing by such Rating Agency (and, if applicable, Fitch)). In
addition, any such item by its terms must have a predetermined
fixed dollar amount of principal due at maturity that cannot vary
or change. Interest may either be fixed or variable. If such
interest is variable, interest must be tied to a single interest
rate index plus a single fixed spread (if any), and move
proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized under
the laws of the United States or any state thereof (having
original maturities of not more than 365 days), the short term
obligations of which are rated in the highest rating category of
each of Xxxxx'x and S&P (or, in the case of either Rating Agency
(and, if applicable, Fitch), such lower rating as will not result
in an Adverse Rating Event with respect to any Class of
Certificates or any class of Pari Passu Non-Trust Mortgage Loan
Securities that is rated by such Rating Agency (or, if
applicable, Fitch), as evidenced in writing by such Rating Agency
(and, if applicable, Fitch)). In addition, any such item by its
terms must have a predetermined fixed dollar amount of principal
due at maturity that cannot vary or change. Interest may either
be fixed or variable. If such interest is variable, interest must
be tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with that index;
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(iv) commercial paper (having original maturities of not more than 90
days) of any corporation incorporated under the laws of the
United States or any state thereof (or if not so incorporated,
the commercial paper is United States Dollar denominated and
amounts payable thereunder are not subject to any withholding
imposed by any non-United States jurisdiction) which is rated in
the highest rating category of each of Xxxxx'x and S&P (or, in
the case of either Rating Agency (and, if applicable, Fitch),
such lower rating as will not result in an Adverse Rating Event
with respect to any Class of Certificates or any class of Pari
Passu Non-Trust Mortgage Loan Securities that is rated by such
Rating Agency (or, if applicable, Fitch), as evidenced in writing
by such Rating Agency (and, if applicable, Fitch)). In addition,
such commercial paper by its terms must have a predetermined
fixed dollar amount of principal due at maturity that cannot vary
or change. Interest may either be fixed or variable. If such
interest is variable, interest must be tied to a single interest
rate index plus a single fixed spread (if any), and move
proportionately with that index;
(v) units of money market funds rated in the highest applicable
rating category of each of Xxxxx'x and S&P (or, in the case of
either Rating Agency (and, if applicable, Fitch), such lower
rating as will not result in an Adverse Rating Event with respect
to any Class of Certificates or any class of Pari Passu Non-Trust
Mortgage Loan Securities that is rated by such Rating Agency (or,
if applicable, Fitch), as evidenced in writing by such Rating
Agency (and, if applicable, Fitch)) and which seeks to maintain a
constant net asset value; and
(vi) any other obligation or security that (A) is acceptable to each
Rating Agency, evidence of which acceptability shall be (1) in
the case of either Rating Agency (and, if applicable, Fitch),
evidenced in a writing by such Rating Agency (and, if applicable,
Fitch) to the effect that such obligation or security will not
result in an Adverse Rating Event with respect to any Class of
Certificates or any class of Pari Passu Non-Trust Mortgage Loan
Securities that is rated by such Rating Agency (or, if
applicable, Fitch), or (2) otherwise evidenced in a writing by
each Rating Agency (and, if applicable, Fitch) to the Master
Servicer, the Special Servicer and the Trustee, and (B)
constitutes a "cash flow investment" (within the meaning of the
REMIC Provisions), as evidenced by an Opinion of Counsel obtained
at the expense of the Person that wishes to include such
obligation or security as a Permitted Investment;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; (2) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity; and (3) no
investment described hereunder may have a "r" highlighter or other comparable
qualifier attached to its rating.
"Permitted Transferee" shall mean any Transferee of a Residual
Interest Certificate other than (a) a Disqualified Organization, (b) any Person
as to whom, as determined by the Trustee (based upon an Opinion of Counsel,
obtained at the request of the Trustee at the expense of such Person or the
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Person seeking to Transfer a Residual Interest Certificate, supporting such
determination), the Transfer of a Residual Interest Certificate may cause any
REMIC Pool to fail to qualify as a REMIC at any time that any Certificate is
outstanding, (c) a Disqualified Non-United States Tax Person, (d) a Disqualified
Partnership, or (e) a foreign permanent establishment or fixed base (within the
meaning of any applicable income tax treaty between the United States and any
foreign jurisdiction) of a United States Tax Person.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" shall have the meaning assigned thereto in Section 5.02(c).
"Plurality Residual Interest Certificateholder" shall mean, as to any
taxable year of any REMIC Pool, the Holder of Certificates evidencing the
largest Percentage Interest in the related Class of Residual Interest
Certificates.
"PNC" shall mean PNC Bank, National Association.
"Pool Custodial Account" shall mean the segregated account or accounts
created and maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Midland Loan Services, Inc. [OR THE NAME OF ANY SUCCESSOR MASTER
SERVICER], as Master Servicer, on behalf of Xxxxx Fargo Bank, N.A. [OR THE NAME
OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the registered holders of
LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage Pass-Through
Certificates, Series 2004-C2, Pool Custodial Account".
"Pool REO Account" shall mean the segregated account or accounts
created and maintained by the Special Servicer pursuant to Section 3.16 on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Midland Loan Services, Inc. [OR THE NAME OF ANY SUCCESSOR SPECIAL
SERVICER], as Special Servicer, on behalf of Xxxxx Fargo Bank, N.A. [OR THE NAME
OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the registered holders of
LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage Pass-Through
Certificates, Series 2004-C2, Pool REO Account".
"Prepayment Assumption" shall mean, for purposes of determining the
accrual of original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, the assumption that no Mortgage
Loan is prepaid prior to stated maturity, except that it is assumed that each
ARD Mortgage Loan is repaid on its Anticipated Repayment Date.
"Prepayment Consideration" shall mean any Prepayment Premium and/or
Yield Maintenance Charge.
"Prepayment Consideration Entitlement" shall mean, with respect to (1)
any Distribution Date on which any Net Prepayment Consideration Received by the
Trust on any Trust Mortgage Loan or REO Trust Mortgage Loan is distributable and
(2) any Class of YM Principal Balance Certificates that is entitled to
distributions of principal on such Distribution Date, for purposes of
determining the portion of such Net Prepayment Consideration distributable with
respect to such Class of YM Principal Balance
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Certificates, an amount equal to the product of (x) the amount of such Net
Prepayment Consideration, multiplied by (y) a fraction (not greater than 1.0 or
less than 0.0), the numerator of which is equal to the excess, if any, of the
Pass-Through Rate for such Class of YM Principal Balance Certificates over the
relevant Discount Rate, and the denominator of which is equal to the excess, if
any, of the Mortgage Rate for the subject Trust Mortgage Loan or REO Trust
Mortgage Loan, as the case may be, over the relevant Discount Rate, and further
multiplied by (z) a fraction, the numerator of which is equal to the amount of
principal to be distributed on such Class of YM Principal Balance Certificates
on such Distribution Date pursuant to Section 4.01 or 9.01, as applicable, and
the denominator of which is equal to the Adjusted Principal Distribution Amount
for such Distribution Date.
"Prepayment Interest Excess" shall mean: (a) with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part made
(or, if resulting from the application of Insurance Proceeds or Condemnation
Proceeds, any other early recovery of principal received) after its Due Date in
any applicable Collection Period, any payment of interest (net of related Master
Servicing Fees) actually collected from the related Mortgagor or otherwise and
intended to cover interest accrued on such Principal Prepayment during the
period from and after such Due Date (exclusive, however, of any related
Prepayment Premium or Yield Maintenance Charge that may have been collected and,
in the case of an ARD Mortgage Loan after its Anticipated Repayment Date,
further exclusive of any Additional Interest); and (b) with respect to the GIC
Office Trust Mortgage Loan, a "Prepayment Interest Excess" in respect thereof
under, and within the meaning of, the GIC Office Servicing Agreement (net of
related Master Servicing Fees).
"Prepayment Interest Shortfall" shall mean: (a) with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part made
(or, if resulting from the application of Insurance Proceeds or Condemnation
Proceeds, any other early recovery of principal received) prior to its Due Date
in any applicable Collection Period, the amount of interest, to the extent not
collected from the related Mortgagor or otherwise (without regard to any
Prepayment Premium or Yield Maintenance Charge that may have been collected),
that would have accrued at a rate per annum equal to the related Mortgage Rate
(reduced by the related Master Servicing Fee Rate and, in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, the related Additional
Interest Rate) on the amount of such Principal Prepayment during the period from
the date to which interest was paid by the related Mortgagor to, but not
including, such Due Date; and (b) with respect to the GIC Office Trust Mortgage
Loan, a "Prepayment Interest Shortfall" in respect thereof under, and within the
meaning of, the GIC Office Servicing Agreement (reduced by the related Master
Servicing Fees).
"Prepayment Premium" shall mean any premium, penalty or fee (other
than a Yield Maintenance Charge) paid or payable, as the context requires, as a
result of a Principal Prepayment on, or other early collection of principal of,
a Mortgage Loan.
"Primary Servicing Office" shall mean the offices of the Master
Servicer or the Special Servicer, as the context may require, that are primarily
responsible for such party's servicing obligations hereunder. As of the Closing
Date, the Primary Servicing Office of the Master Servicer is located at 00000
Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for deliveries) and X.X. Xxx
00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000 (for communications by United States mail),
Attention: President, and the Primary Servicing Office of the Special Servicer
is located at 00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for
deliveries) and X.X. Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000 (for
communications by United States mail), Attention: President.
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"Prime Rate" shall mean the "prime rate" published in the "Money
Rates" section of The Wall Street Journal, as such "prime rate" may change from
time to time. If The Wall Street Journal ceases to publish the "prime rate",
then the Trustee shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Trustee shall select a comparable interest rate index. In either case,
such selection shall be made by the Trustee in its sole discretion and the
Trustee shall notify any Fiscal Agent, the Master Servicer, the Special Servicer
and each Serviced Non-Trust Mortgage Loan Noteholder in writing of its
selection.
"Principal Balance Certificate" shall mean any Regular Interest
Certificate (other than an Interest-Only Certificate).
"Principal Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to the aggregate (without duplication) of the
following:
(a) the aggregate of all payments of principal (other than Principal
Prepayments) Received by the Trust with respect to the Trust Mortgage Loans
during the related Collection Period, in each case exclusive of any portion of
the particular payment that represents a Late Collection of principal for which
a P&I Advance was previously made under this Agreement for a prior Distribution
Date or that represents the principal portion of a Monthly Payment due on or
before the Cut-off Date or on a Due Date subsequent to the related Collection
Period;
(b) the aggregate of the principal portions of all Monthly Payments
due in respect of the Trust Mortgage Loans for their respective Due Dates
occurring during the related Collection Period, that were Received by the Trust
prior to the related Collection Period;
(c) the aggregate of all Principal Prepayments Received by the Trust
on the Trust Mortgage Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds, Condemnation Proceeds
and Insurance Proceeds Received by the Trust with respect to any Trust Mortgage
Loans during the related Collection Period that were identified and applied by
the Master Servicer as recoveries of principal of such Trust Mortgage Loans, in
each case exclusive of any portion of such proceeds that represents a Late
Collection of principal due on or before the Cut-off Date or for which a P&I
Advance was previously made under this Agreement for a prior Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and REO Revenues Received by the Trust with respect to any
REO Properties during the related Collection Period that were identified and
applied by the Master Servicer as recoveries of principal of the related REO
Trust Mortgage Loans, in each case exclusive of any portion of such proceeds
and/or revenues that represents a Late Collection of principal due on or before
the Cut-off Date or for which a P&I Advance was previously made under this
Agreement for a prior Distribution Date; and
(f) the aggregate of the principal portions of all P&I Advances made
under this Agreement with respect to the Trust Mortgage Loans and any REO Trust
Mortgage Loans for such Distribution Date;
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provided that none of the amounts set forth in clauses (a) through (f) of this
definition shall represent amounts received, due or advanced on or in respect of
any Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
"Principal Prepayment" shall mean any voluntary payment of principal
made by or on behalf of the Mortgagor on a Mortgage Loan that is received in
advance of its scheduled Due Date, that by the Trust and that is not accompanied
by an amount of interest (without regard to any Prepayment Premium or Yield
Maintenance Charge that may have been collected) representing scheduled interest
due on any date or dates in any month or months subsequent to the month of
prepayment.
"Prohibited Transaction Exemption" shall mean Prohibited Transaction
Exemption 91-14 granted to a predecessor of Xxxxxx Brothers by the United States
Department of Labor, as such Prohibited Transaction Exemption may be amended
from time to time.
"Proposed Plan" shall have the meaning assigned thereto in Section
3.17(a)(iii).
"Prospectus" shall mean the prospectus dated March 23, 2004, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement dated
March 23, 2004, relating to the Registered Certificates.
"Purchase Price" shall mean, with respect to any Trust Mortgage Loan
(or REO Property or, in the case of any REO Property that relates to a Loan
Combination, the Trust's interest therein), a cash price equal to the aggregate
of: (a) the outstanding principal balance of such Trust Mortgage Loan (or the
related REO Trust Mortgage Loan) as of the date of purchase, (b) all accrued and
unpaid interest on such Trust Mortgage Loan (or the related REO Trust Mortgage
Loan) to, but not including, the Due Date in the applicable Collection Period of
purchase (exclusive, however, of any portion of such accrued but unpaid interest
that represents Default Interest or, in the case of an ARD Trust Mortgage Loan
(or any successor REO Trust Mortgage Loan with respect thereto) after its
Anticipated Repayment Date, Additional Interest), (c) all related unreimbursed
Servicing Advances with respect to such Trust Mortgage Loan (or REO Property),
if any, together with the amount of any Servicing Advance (and accrued interest
thereon in accordance with Section 3.11(g)) with respect to such Trust Mortgage
Loan (or REO Property) that has been previously reimbursed as a Nonrecoverable
Advance out of general collections of principal on the Mortgage Pool (but only
to the extent such amounts have not been reimbursed to the Trust), (d) all
accrued and unpaid interest, if any, in respect of related Advances in
accordance with, as applicable, Section 3.11(g) and/or Section 4.03(d), and (e)
in the case of a repurchase by the Depositor pursuant to Section 2.03 or by the
UBS Mortgage Loan Seller pursuant to the UBS/Depositor Mortgage Loan Purchase
Agreement, (i) to the extent not otherwise included in the amount described in
clause (d) of this definition, any unpaid Special Servicing Fees and other
Additional Trust Fund Expenses with respect to such Trust Mortgage Loan (or REO
Property), including any Liquidation Fee that may be payable because the subject
repurchase occurred subsequent to the expiration of the Initial Resolution
Period plus the applicable Resolution Extension Period for the Material Document
Defect or Material Breach, as applicable, that gave rise to the repurchase, and
(ii) to the extent not otherwise included in the amount described in clause (c)
of this definition, any costs and expenses incurred by the Master Servicer, the
Special Servicer or the Trustee (on behalf of the Trust) in enforcing the
obligation of such Person to purchase such Mortgage Loan; provided that, in the
case of a Trust Mortgage Loan that is part of a Loan Combination, the Purchase
Price calculated above may be
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reduced (subject to the provisions of the related Co-Lender Agreement) by any
related unpaid Master Servicing Fees, unreimbursed Advances and/or, to the
extent included therein pursuant to clause (d) above, unpaid interest on
Advances which, following the subject purchase, will continue to be payable or
reimbursable under the related co-lender agreement and/or any successor
servicing agreement to the Master Servicer and/or the Special Servicer in
respect of such Trust Mortgage Loan (which amounts shall no longer be payable
hereunder); and provided, further, that, in the case of an REO Property that
relates to a Serviced Loan Combination, for purposes of Section 3.18 and the
definition of "Specially Designated Servicing Action", the Purchase Price for
such REO Property shall instead equal the aggregate of the amounts described in
clauses (a), (b), (c) and (d) above with respect to all of the REO Mortgage
Loans comprising such Loan Combination.
"Qualified Bidder" shall have the meaning assigned thereto in Section
7.01(c).
"Qualified Institutional Buyer" or "QIB" shall mean a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act.
"Qualified Insurer" shall mean an insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rated Final Distribution Date" shall mean: (a) with respect to the
Class A-1, Class A-2 and Class A-3 Certificates, the Distribution Date in March
2029; and (b) with respect to the other Classes of Principal Balance
Certificates (exclusive of the Class T Certificates), the Distribution Date in
March 2036.
"Rating Agency" shall mean each of Xxxxx'x and S&P.
"Realized Loss" shall mean:
(1) with respect to each Mortgage Loan as to which a Final Recovery
Determination has been made, or with respect to any successor REO Mortgage
Loan as to which a Final Recovery Determination has been made as to the
related REO Property, an amount (not less than zero) equal to the excess,
if any, of (a) the sum of (i) the unpaid principal balance of such Mortgage
Loan or REO Mortgage Loan, as the case may be, as of the commencement of
the applicable Collection Period in which the Final Recovery Determination
was made, plus (ii) without taking into account the amount described in
subclause (1)(b) of this definition, all accrued but unpaid interest on
such Mortgage Loan or such REO Mortgage Loan, as the case may be, to but
not including the Due Date in the applicable Collection Period in which the
Final Recovery Determination was made (exclusive, however, of any portion
of such accrued but unpaid interest that represents Default Interest or, in
the case of an ARD Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto after its Anticipated Repayment Date, Additional
Interest), over (b) all payments and proceeds, if any, received in respect
of such Mortgage Loan or, to the extent allocable to such REO Mortgage
Loan, the related REO Property, as the case may be, during the applicable
Collection Period in which such Final Recovery Determination was made,
insofar as such payments and proceeds are allocable to interest (other than
Default Interest and Additional Interest) on or principal of such Mortgage
Loan or REO Mortgage Loan; provided that, in the case of the GIC Office
Trust Mortgage Loan or any GIC Office REO Trust Mortgage Loan, references
to "Collection Period" in this clause (1) shall mean the "GIC Office
Collection Period";
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(2) with respect to each Mortgage Loan as to which any portion of the
principal or previously accrued interest payable thereunder was canceled in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, extension, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to
Section 3.20 (or, in the case of the GIC Office Trust Mortgage Loan, by the
applicable GIC Office Servicer pursuant to the GIC Office Servicing
Agreement), the amount of such principal and/or interest (other than
Default Interest and, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, Additional Interest) so canceled;
(3) with respect to each Mortgage Loan as to which the Mortgage Rate
thereon has been permanently reduced and not recaptured for any period in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, extension, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to
Section 3.20 (or, in the case of the GIC Office Trust Mortgage Loan, by the
applicable GIC Office Servicer pursuant to the GIC Office Servicing
Agreement), the amount of the consequent reduction in the interest portion
of each successive Monthly Payment due thereon (each such Realized Loss
shall be deemed to have been incurred on the Due Date for each affected
Monthly Payment); and
(4) with respect to any Trust Mortgage Loan or REO Trust Mortgage
Loan, to the extent not otherwise taken into account as part of a Realized
Loss determined pursuant to any of clauses (1), (2) and (3) of this
definition, the amount of any related Advance that is reimbursed as a
Nonrecoverable Advance out of general collections on the Mortgage Pool (net
of any Recovered Amount in connection with the item for which such
Nonrecoverable Advance was made).
To the extent relevant for reporting purposes, "Realized Losses" in
respect of the Serviced Non-Trust Mortgage Loans shall be calculated in
substantially the same manner as set forth above for a Trust Mortgage Loan.
"Received by the Trust" shall mean: (a) in the case of the GIC Office
Trust Mortgage Loan or any GIC Office REO Property, received by the Trustee (or
the Master Servicer on behalf of the Trustee), as holder of the Mortgage Note
for the GIC Office Trust Mortgage Loan, on behalf of the Trust; and (b) in the
case of any other Trust Mortgage Loan or REO Property, received by the Master
Servicer or any of its Sub-Servicers, the Special Servicer or any of its
Sub-Servicers or the Trustee, as the case may be, in any event on behalf of the
Trust.
"Record Date" shall mean, with respect to any Distribution Date, the
last Business Day of the month immediately preceding the month in which such
Distribution Date occurs; provided that the "Record Date" for the initial
Distribution Date shall be the Closing Date.
"Recording/Filing Agent" shall have the meaning assigned thereto in
Section 2.01(c).
"Recovered Amount" shall have the meaning assigned thereto in Section
1.03(c).
"Reference Rate" shall mean, with respect to any Interest Accrual
Period, the applicable rate per annum set forth on the Reference Rate Schedule.
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"Reference Rate Schedule" shall mean the list of Reference Rates set
forth on the schedule attached hereto as Schedule IV.
"Registered Certificate" shall mean any Certificate that has been the
subject of registration under the Securities Act. As of the Closing Date, the
Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C, Class D, Class E
and Class F Certificates are Registered Certificates.
"Regular Interest Certificate" shall mean any REMIC III Certificate
other than a Class R-III Certificate.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Certificate" shall mean, with respect to any
Class of Book-Entry Non-Registered Certificates offered and sold outside of the
United States in reliance on Regulation S, one or collectively more global
Certificates of such Class registered in the name of the Depository or its
nominee, in definitive, fully registered form without interest coupons, each of
which Certificates bears a Regulation S Legend.
"Regulation S Legend" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the United
States in reliance on Regulation S, a legend generally to the effect that such
Certificates may not be offered, sold, pledged or otherwise transferred in the
United States or to a United States Securities Person prior to the applicable
Regulation S Release Date, except pursuant to an exemption from the registration
requirements of the Securities Act.
"Regulation S Release Date" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the United
States in reliance on Regulation S, the date that is 40 days after the later of
(a) the commencement of the offering of such Certificates to Persons other than
distributors in reliance on Regulation S, and (b) the date of closing of the
offering.
"Reimbursement Rate" shall mean the rate per annum applicable to the
accrual of interest, compounded annually, on Servicing Advances in accordance
with Section 3.11(g) and on P&I Advances in accordance with Section 4.03(d),
which rate per annum is equal to the Prime Rate.
"REMIC" shall mean a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC I" shall mean the segregated pool of assets constituting the
primary trust created hereby and to be administered hereunder with respect to
which a separate REMIC election is to be made, and consisting of: (i) the Trust
Mortgage Loans as from time to time are subject to this Agreement and all
payments under and proceeds of such Trust Mortgage Loans Received by the Trust
after the Closing Date (other than any such payments and/or proceeds that
represent (A) scheduled payments of interest and principal due in respect of the
Trust Mortgage Loans on or before the Cut-off Date, (B) amounts that constitute
part of the Excess Servicing Strip, or (C) Additional Interest Received by the
Trust in respect of the ARD Trust Mortgage Loans after their respective
Anticipated Repayment Dates), together with all documents included in the
related Mortgage Files; (ii) any Administered REO Properties as from time to
time are subject to this Agreement (or, in the case of any REO Property that
relates to a Serviced Loan Combination, the Trust's interest therein, or, in the
case of the GIC Office Trust Mortgage Loan, the rights of the holder thereof
with respect to any GIC Office REO Property under the GIC Office
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Servicing Agreement) and all income and proceeds therefrom; (iii) such funds or
assets as from time to time are deposited in the Pool Custodial Account, the
Collection Account, the Interest Reserve Account and, if established, the Pool
REO Account, exclusive of any funds or assets that constitute part of the Excess
Servicing Strip or represent Additional Interest Received by the Trust in
respect of the ARD Trust Mortgage Loans after their respective Anticipated
Repayment Dates; and (iv) the rights of the Depositor under the UBS/Depositor
Mortgage Loan Purchase Agreement; provided that REMIC I shall not include the
Non-Trust Mortgage Loans or any successor REO Mortgage Loans with respect
thereto or any payments or other collections of principal, interest, Prepayment
Premiums, Yield Maintenance Charges or other amounts collected on such Non-Trust
Mortgage Loans or any successor REO Mortgage Loans with respect thereto.
"REMIC I Regular Interest" shall mean any of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a "regular interest" in REMIC I, as described in the Preliminary
Statement hereto.
"REMIC I Remittance Rate" shall mean: (a) with respect to any REMIC I
Regular Interest that, as of the Closing Date, corresponds to a Trust Mortgage
Loan that accrues interest on a 30/360 Basis, a rate per annum that is, for any
Interest Accrual Period, equal to (i) the Mortgage Rate in effect for such
corresponding Trust Mortgage Loan as of the Closing Date (without regard to any
modifications, extensions, waivers or amendments of such corresponding Trust
Mortgage Loan subsequent to the Closing Date), minus (ii) the Administrative
Cost Rate for such corresponding Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with respect thereto); (b) with respect to any REMIC I Regular
Interest that, as of the Closing Date, corresponds to a Serviced Trust Mortgage
Loan that accrues interest on an Actual/360 Basis, a rate per annum that is, for
any Interest Accrual Period, equal to (i) a fraction (expressed as a
percentage), the numerator of which is the product of 12 times the Adjusted
Actual/360 Accrued Interest Amount with respect to such REMIC I Regular Interest
for such Interest Accrual Period, and the denominator of which is the
Uncertificated Principal Balance of such REMIC I Regular Interest immediately
prior to the Distribution Date that corresponds to such Interest Accrual Period,
minus (ii) the Administrative Cost Rate for the corresponding Trust Mortgage
Loan (or any successor REO Trust Mortgage Loan with respect thereto); and (c)
with respect to the REMIC I Regular Interest that, as of the Closing Date,
corresponds to the GIC Office Trust Mortgage Loan, a rate per annum that is, for
any Interest Accrual Period, equal to (i) a fraction (expressed as a
percentage), the numerator of which is the product of 12 times the Adjusted
Actual/360 Accrued Interest Amount with respect to such REMIC I Regular Interest
for such Interest Accrual Period, and the denominator of which is the
Uncertificated Principal Balance of such REMIC I Regular Interest immediately
prior to the Distribution Date that corresponds to such Interest Accrual Period,
minus (ii) the sum of the related Master Servicing Fee Rate plus the Trustee Fee
Rate.
"REMIC II" shall mean the segregated pool of assets consisting of all
of the REMIC I Regular Interests conveyed in trust to the Trustee for the
benefit of REMIC III, as holder of the REMIC II Regular Interests, and the
Holders of the Class R-II Certificates, pursuant to Section 2.07, with respect
to which a separate REMIC election is to be made.
"REMIC II Regular Interest" shall mean any of the 31 separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a "regular interest" in REMIC II. Each REMIC II Regular Interest
shall accrue interest at its REMIC II Remittance Rate in effect from time to
time and shall be entitled to distributions of principal, subject to the terms
and conditions hereof,
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in an aggregate amount equal to its initial Uncertificated Principal Balance as
set forth in the Preliminary Statement hereto. The designations for the
respective REMIC II Regular Interests are set forth in the Preliminary Statement
hereto.
"REMIC II Remittance Rate" shall mean, with respect to each REMIC II
Regular Interest for any Interest Accrual Period, an annual rate equal to the
Weighted Average REMIC I Remittance Rate for such Interest Accrual Period.
"REMIC III" shall mean the segregated pool of assets consisting of all
of the REMIC II Regular Interests conveyed in trust to the Trustee for the
benefit of the Holders of the REMIC III Certificates, pursuant to Section 2.09,
with respect to which a separate REMIC election is to be made.
"REMIC III Certificate" shall mean any Class A-1, Class A-2, Class
X-0, Xxxxx X-0, Class X-CL, Class X-CP, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P,
Class Q, Class S, Class T or Class R-III Certificate.
"REMIC III Component" shall mean:
(a) with respect to the Class X-CL Certificates, any of the following
31 components of the Class X-CL Certificates: REMIC III Component
X-CL-A-1-1; REMIC III Component X-CL-A-1-2; REMIC III Component X-CL-A-1-3;
REMIC III Component X-CL-A-2-1; REMIC III Component X-CL-A-2-2; REMIC III
Component X-CL-A-2-3; REMIC III Component X-CL-A-2-4; REMIC III Component
X-CL-A-3-1; REMIC III Component X-CL-A-3-2; REMIC III Component X-CL-A-4-1;
REMIC III Component X-CL-A-4-2; REMIC III Component X-CL-B; REMIC III
Component X-CL-C; REMIC III Component X-CL-D; REMIC III Component X-CL-E-1;
REMIC III Component X-CL-E-2; REMIC III Component X-CL-F-1; REMIC III
Component X-CL-F-2; REMIC III Component X-CL-G-1; REMIC III Component
X-CL-G-2; REMIC III Component X-CL-H-1; REMIC III Component X-CL-H-2; REMIC
III Component X-CL-J; REMIC III Component X-CL-K; REMIC III Component
X-CL-L; REMIC III Component X-CL-M; REMIC III Component X-CL-N; REMIC III
Component X-CL-P; REMIC III Component X-CL-Q; REMIC III Component X-CL-S;
and REMIC III Component X-CL-T; each of which (i) constitutes a separate
"regular interest" in REMIC III for purposes of the REMIC Provisions, (ii)
relates to its Corresponding REMIC II Regular Interest, and (iii) has a
Component Notional Amount equal to the Uncertificated Principal Balance of
its Corresponding REMIC II Regular Interest outstanding from time to time;
and
(b) with respect to the Class X-CP Certificates, any of the following
22 components of the Class X-CP Certificates: REMIC III Component
X-CP-A-1-2; REMIC III Component X-CP-A-1-3; REMIC III Component X-CP-A-2-1;
REMIC III Component X-CP-A-2-2; REMIC III Component X-CP-A-2-3; REMIC III
Component X-CP-A-2-4; REMIC III Component X-CP-A-3-1; REMIC III Component
X-CP-A-3-2; REMIC III Component X-CP-A-4-1; REMIC III Component X-CP-A-4-2;
REMIC III Component X-CP-B; REMIC III Component X-CP-C; REMIC III Component
X-CP-D; REMIC III Component X-CP-E-1; REMIC III Component X-CP-E-2; REMIC
III Component X-CP-F-1; REMIC III Component X-CP-F-2; REMIC III Component
X-CP-G-1; REMIC III Component X-CP-G-2; REMIC III Component X-CP-H-1; REMIC
III Component X-CP-H-2; and REMIC III Component X-CP-J; each of which (i)
constitutes a separate "regular interest" in REMIC III for purposes of the
REMIC Provisions, (ii) relates to its Corresponding REMIC II Regular
Interest, and (iii) has a Component Notional
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Amount equal to the Uncertificated Principal Balance of its Corresponding
REMIC II Regular Interest outstanding from time to time.
"REMIC Pool" shall mean any of REMIC I, REMIC II and REMIC III.
"REMIC Provisions" shall mean the provisions of the federal income tax
law relating to REMICs, which appear at Sections 860A through 860G of Subchapter
M of Chapter 1 of the Code, and related provisions, and proposed, temporary and
final Treasury regulations and any published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean the Pool REO Account, the 000 Xxxxx Xxxxxx
REO Account, the Somerset Collection REO Account, the Xxxxxxxx Place REO Account
or the Cumberland Place REO Account, as applicable.
"REO Acquisition" shall mean the acquisition of any REO Property
pursuant to Section 3.09 (or, in the case of any GIC Office REO Property,
pursuant to the GIC Office Servicing Agreement).
"REO Disposition" shall mean the sale or other disposition of any
Administered REO Property pursuant to Section 3.18 (or, in the case of any GIC
Office REO Property, pursuant to the GIC Office Servicing Agreement).
"REO Extension" shall have the meaning assigned thereto in Section
3.16(a).
"REO Mortgage Loan" shall mean the mortgage loan (or, if a Serviced
Loan Combination is involved, one of the two or more mortgage loans comprising
such Loan Combination) deemed for purposes hereof to be outstanding with respect
to each REO Property. Each REO Mortgage Loan shall be deemed to relate to and
succeed the Mortgage Loan (or, in the case of any REO Property that relates to a
Serviced Loan Combination, one of the two or more Mortgage Loans) relating to
the subject REO Property. Each REO Mortgage Loan shall be deemed to provide for
monthly payments of principal and/or interest equal to its Assumed Monthly
Payment and otherwise to have the same terms and conditions as its predecessor
Mortgage Loan (such terms and conditions to be applied without regard to the
default on such predecessor Mortgage Loan and the acquisition of the related REO
Property as part of the Trust Fund or, if applicable in the case of any REO
Property that relates to a Loan Combination, on behalf of the Trust and the
related Non-Trust Mortgage Loan Noteholder(s)). Each REO Mortgage Loan shall be
deemed to have an initial unpaid principal balance and, if applicable hereunder,
an initial Stated Principal Balance equal to the unpaid principal balance and
Stated Principal Balance, respectively, of its predecessor Mortgage Loan as of
the date of the related REO Acquisition. All Monthly Payments (other than a
Balloon Payment), Assumed Monthly Payments (in the case of a Balloon Mortgage
Loan delinquent in respect of its Balloon Payment) and other amounts due and
owing, or deemed to be due and owing, in respect of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, shall be deemed to continue
to be due and owing in respect of an REO Mortgage Loan. Amounts Received by the
Trust (or, if applicable, received on behalf of the related Serviced Non-Trust
Mortgage Loan Noteholder) with respect to each REO Mortgage Loan (after
provision for amounts to be applied to the payment of, or to be reimbursed to
the Master Servicer or the Special
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Servicer for the payment of, the costs of operating, managing and maintaining
the related REO Property (other than in the case of a GIC Office REO Property)
or for the reimbursement of the Master Servicer or the Special Servicer for
other related Servicing Advances) shall be treated: first, as a recovery of
accrued and unpaid interest on such REO Mortgage Loan at the related Mortgage
Rate (net of related "Master Servicing Fees" payable under the GIC Office
Servicing Agreement) to but not including the Due Date in the Collection Period
of receipt (exclusive, however, in the case of an REO Mortgage Loan that relates
to an ARD Mortgage Loan after its Anticipated Repayment Date, of any such
accrued and unpaid interest that constitutes Additional Interest); second, as a
recovery of principal of such REO Mortgage Loan to the extent of its entire
unpaid principal balance; third, in accordance with the normal servicing
practices of the Master Servicer, as a recovery of any other amounts (or, in the
case of any GIC Office REO Trust Mortgage Loan, any Yield Maintenance Charge)
due and owing in respect of such REO Mortgage Loan (exclusive, however, in the
case of an REO Mortgage Loan that relates to an ARD Mortgage Loan after its
Anticipated Repayment Date, of any such accrued and unpaid interest that
constitutes Additional Interest); and fourth, in the case of an REO Mortgage
Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date,
as a recovery of accrued and unpaid Additional Interest on such REO Mortgage
Loan; provided that, in any GIC Office Trust Mortgage Loan, if an allocation in
accordance with this sentence would conflict with remittance reports from the
applicable GIC Office Servicer, the Master Servicer shall, in the absence of
actual knowledge of an error, rely on the allocation in such remittance reports;
and provided, further, that, if one or more Advances previously made in respect
of an REO Trust Mortgage Loan have been reimbursed out of general collections of
principal on the Mortgage Pool as one or more Nonrecoverable Advances, then
collections in respect of such REO Trust Mortgage Loan available for application
pursuant to clauses first through fourth of this sentence shall instead be
applied in the following order--(i) as a recovery of accrued and unpaid interest
on, and principal of, such REO Trust Mortgage Loan, to the extent of any
outstanding P&I Advances and unpaid Master Servicing Fees in respect of such REO
Trust Mortgage Loan, (ii) as a recovery of the item(s) for which such previously
reimbursed Nonrecoverable Advance(s) were made (together with any interest on
such previously reimbursed Nonrecoverable Advance(s) that was also paid out of
general collections of principal on the Mortgage Pool), and (iii) in accordance
with clauses first through fourth of this sentence (taking into account the
applications pursuant to clauses (i) and (ii) of this proviso); and provided,
further, that if the Mortgage Loans comprising the 000 Xxxxx Xxxxxx Loan Pair
become REO Mortgage Loans, amounts received with respect to the 000 Xxxxx Xxxxxx
REO Mortgage Loans shall be allocated between those two REO Mortgage Loans as
provided in the 000 Xxxxx Xxxxxx Co-Lender Agreement and such payments and other
collections so allocated to each such 000 Xxxxx Xxxxxx REO Mortgage Loan shall
be applied to amounts due and owing under such REO Mortgage Loan (including for
principal and accrued and unpaid interest) in accordance with the foregoing
provisions of this definition of "REO Mortgage Loan" (provided that references
to the recovery of any related unpaid servicing expenses and unreimbursed
Servicing Advances above in this definition, with respect to each 000 Xxxxx
Xxxxxx REO Mortgage Loan, shall be deemed to refer to that 000 Xxxxx Xxxxxx REO
Mortgage Loan's allocable share of the related servicing expense and/or
Servicing Advance, as applicable, allocated thereto in accordance with the 000
Xxxxx Xxxxxx Co-Lender Agreement; provided, further, that if the Mortgage Loans
comprising any other Serviced Loan Combination become REO Mortgage Loans,
amounts received with respect to such REO Mortgage Loans shall be applied to
amounts due and owing in respect of such REO Mortgage Loans as provided in the
related Co-Lender Agreement. Notwithstanding the foregoing, all amounts payable
or reimbursable to the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, including any unpaid Servicing Fees and any
unreimbursed Servicing Advances and P&I Advances, together with any interest
accrued and payable to the Master
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Servicer, the Special Servicer, the Trustee or any Fiscal Agent in respect of
such Servicing Advances and P&I Advances in accordance with Sections 3.11(g) and
4.03(d), respectively, shall continue to be payable or reimbursable to the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as the
case may be, in respect of an REO Mortgage Loan.
"REO Property" shall mean a Mortgaged Property acquired on behalf and
in the name of the Trustee for the benefit of the Certificateholders (or, in the
case of a Mortgaged Property related to a Serviced Loan Combination, for the
benefit of the Certificateholders and the related Non-Trust Mortgage Loan
Noteholder(s), as their interests may appear), through foreclosure, acceptance
of a deed-in-lieu of foreclosure or otherwise in accordance with applicable law
in connection with the default or imminent default of a Mortgage Loan (or a Loan
Combination); provided that a GIC Office Mortgaged Property shall constitute an
REO Property if acquired under the GIC Office Servicing Agreement for the
benefit of the GIC Office Non-Trust Mortgage Loan Noteholders and the Trust, as
their interests may appear, through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with a
default or imminent default of the GIC Office Loan Group.
"REO Revenues" shall mean all income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property.
"REO Tax" shall have the meaning assigned thereto in Section 3.17(a).
"REO Trust Mortgage Loan" shall mean the successor REO Mortgage Loan
with respect to any Trust Mortgage Loan as to which the related Mortgaged
Property has become an REO Property.
"Request for Release" shall mean a request signed by a Servicing
Officer of, as applicable, the Master Servicer in the form of Exhibit D-1
attached hereto or the Special Servicer in the form of Exhibit D-2 attached
hereto.
"Required Appraisal" shall mean, with respect to each Required
Appraisal Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the party required or authorized to obtain
such appraisal hereunder, which appraisal shall be prepared in accordance with
12 CFR Section 225.62 and conducted in accordance with the standards of the
Appraisal Institute or, in the case of a Required Appraisal Loan having a Stated
Principal Balance of, or in the case of a Mortgaged Property that has an
allocated loan amount of, less than $2,000,000, if no satisfactory (as
determined by the Special Servicer pursuant to Section 3.09(a)) appraisal
meeting the foregoing criteria was obtained or conducted within the prior 12
months, a "desktop" value estimate performed by the Special Servicer.
"Required Appraisal Loan" shall mean any Serviced Mortgage Loan (other
than a Xxxxxxxx Place Mortgage Loan):
(i) that becomes a Modified Loan;
(ii) that is 60 days or more delinquent in respect of any Monthly
Payment, except for a Balloon Payment;
(iii) that is delinquent in respect of its Balloon Payment, if any,
(A) for one day beyond the related maturity date (in the event that neither
clause (B) nor clause (C) below is
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applicable), or (B) for 30 days beyond the related maturity date (with the
consent of the Somerset Collection Controlling Party (in the case of a
Somerset Collection Mortgage Loan), the Cumberland Place Controlling Party
(in the case of a Cumberland Place Mortgage Loan) or the Controlling Class
Representative (in the case of any other Serviced Mortgage Loan except a
Xxxxxxxx Place Mortgage Loan), as applicable, for such 30-day forbearance
in deeming such Mortgage Loan a "Required Appraisal Loan" under clause (A)
above), or (C) if clause (B) above otherwise applies and, before the end of
the 30-day period provided for in clause (B) above, the related Mortgagor
has delivered a refinancing commitment satisfactory to the Master Servicer
and the Somerset Collection Controlling Party (in the case of a Somerset
Collection Mortgage Loan), the Cumberland Place Controlling Party (in the
case of a Cumberland Place Mortgage Loan) or the Controlling Class
Representative (in the case of any other Serviced Mortgage Loan except a
Xxxxxxxx Place Mortgage Loan), as applicable, and if such Mortgagor
continues timely to make monthly payments equivalent to the related Assumed
Monthly Payments, for a period (not to exceed 120 days) beyond the related
maturity date ending on the date on which it is determined that the
refinancing could not reasonably be expected to occur;
(iv) with respect to which the related Mortgaged Property has become
an REO Property;
(v) with respect to which a receiver or similar official is appointed
and continues for 60 days in such capacity in respect of the related
Mortgaged Property;
(vi) with respect to which the related Mortgagor is subject to a
bankruptcy, insolvency or similar proceedings, which, in the case of an
involuntary bankruptcy, insolvency or similar proceeding, has not been
dismissed within 60 days of the commencement thereof; or
(vii) that remains outstanding five years following any extension of
its maturity date pursuant to Section 3.20;
provided that all of the Mortgage Loans comprising a Serviced Loan Combination
shall, upon the occurrence of any of the events described in clauses (i) through
(vii) of this definition in respect of any such Mortgage Loan, be deemed to be a
single "Required Appraisal Loan"; and provided, further, that the Xxxxxxxx Place
Loan Pair shall constitute a Required Appraisal Loan upon the occurrence of any
of the events contemplated by the first sentence of Section 33 of the Xxxxxxxx
Place Intercreditor Agreement. Any Required Appraisal Loan (other than a
Mortgage Loan that became a Required Appraisal Loan pursuant to clause (vii)
above) shall cease to be such at such time as it has become a Corrected Mortgage
Loan (except if such Required Appraisal Loan had not become a Specially Serviced
Mortgage Loan at the time the applicable event(s) described in any of clauses
(i) through (vii) above (or, in the case of the Xxxxxxxx Place Loan Pair,
referred to in the second proviso of the preceding sentence) ceased to exist),
it has remained current for at least three consecutive Monthly Payments, and no
other event described in clauses (i) through (vii) above (or, in the case of the
Xxxxxxxx Place Loan Pair, referred to in the second proviso of the preceding
sentence) has occurred with respect thereto during the preceding three-month
period. The term "Required Appraisal Loan" shall include any successor REO
Mortgage Loan(s) in respect of a Serviced Trust Mortgage Loan or Serviced Loan
Combination. In no event shall the GIC Office Trust Mortgage Loan, any GIC
Office REO Trust Mortgage Loan or the GIC Office Loan Group constitutes a
Required Appraisal Loan hereunder.
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"Required Appraisal Value" shall mean, with respect to any Mortgaged
Property securing (or REO Property relating to) a Required Appraisal Loan, an
amount equal to the sum of: (a) the excess, if any, of (i) 90% of the Appraised
Value of such Mortgaged Property (or REO Property) as determined by the most
recent Required Appraisal or any letter update of such Required Appraisal (as
such Appraised Value may be reduced by the Special Servicer, in its good faith
and reasonable judgment, acting in accordance with the Servicing Standard, based
upon the Special Servicer's review of the subject Required Appraisal and such
other information that the Special Servicer, in its good faith and reasonable
judgment, deems relevant (provided that the Special Servicer shall not be
obligated to make any such reduction)), over (ii) the amount of any obligations
secured by liens on such Mortgaged Property (or REO Property) that are prior to
the lien of the related Required Appraisal Loan; plus (b) the amount of Escrow
Payments and Reserve Funds held by the Master Servicer in respect of such
Required Appraisal Loan that (i) are not being held for purposes of paying any
real estate taxes and assessments, insurance premiums or, if applicable, ground
rents, (ii) are not otherwise scheduled to be applied or utilized (except to pay
debt service on such Required Appraisal Loan) within the twelve-month period
following the date of determination and (iii) may be applied towards the
reduction of the principal balance of such Required Appraisal Loan; plus (c) the
amount of any letter of credit constituting additional security for such
Required Appraisal Loan and that may be drawn upon for purposes of paying down
the principal balance of such Required Appraisal Loan.
"Reserve Account" shall have the meaning assigned thereto in Section
3.03(d).
"Reserve Funds" shall mean, with respect to any Mortgage Loan, any
amounts delivered by the related Mortgagor to be held by or on behalf of the
mortgagee representing reserves for repairs, capital improvements and/or
environmental remediation in respect of the related Mortgaged Property or debt
service on such Mortgage Loan.
"Residual Interest Certificate" shall mean a Class R-I, Class R-II or
Class R-III Certificate.
"Resolution Extension Period" shall mean:
(a) for purposes of remediating a Material Breach with respect to any
Trust Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(b) for purposes of remediating a Material Document Defect with
respect to any Trust Mortgage Loan that is a Performing Trust Mortgage Loan
at the commencement of, and that does not become a Specially Serviced Trust
Mortgage Loan during, the applicable Initial Resolution Period, the 90-day
period following the end of the applicable Initial Resolution Period;
(c) for purposes of remediating a Material Document Defect with
respect to any Trust Mortgage Loan that is a Performing Trust Mortgage Loan
as of the commencement of the applicable Initial Resolution Period, but as
to which a Servicing Transfer Event occurs during such Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the later of (i) the 45th
day following the end of such Initial Resolution Period and (ii) the 90th
day following the receipt by the Depositor, in the case of a Xxxxxx Trust
Mortgage Loan, or by the UBS Mortgage Loan Seller, in the case of a UBS
Trust Mortgage Loan, of a Seller/Depositor Notification regarding the
occurrence of the
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relevant Servicing Transfer Event; provided that, if the Depositor, in the
case of a Xxxxxx Trust Mortgage Loan, or the UBS Mortgage Loan Seller, in
the case of a UBS Trust Mortgage Loan, did not receive a Seller/Depositor
Notification regarding the occurrence of the relevant Servicing Transfer
Event during the applicable Initial Resolution Period, then clause (b) of
this definition will be deemed to apply; and
(d) for purposes of remediating a Material Document Defect with
respect to any Trust Mortgage Loan that is a Specially Serviced Trust
Mortgage Loan as of the commencement of the applicable Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the 45th day following the
end of such Initial Resolution Period, provided that, if the Depositor, in
the case of a Xxxxxx Trust Mortgage Loan, or the UBS Mortgage Loan Seller,
in the case of a UBS Trust Mortgage Loan, did not receive a
Seller/Depositor Notification regarding the occurrence of the relevant
Servicing Transfer Event as of the commencement of the applicable Initial
Resolution Period, then (i) if such Seller/Depositor Notification is
received during the applicable Initial Resolution Period, such Servicing
Transfer Event shall be deemed to have occurred during such Initial
Resolution Period and clause (c) of this definition will be deemed to
apply, and (ii) if such Seller/Depositor Notification is not received
during the applicable Initial Resolution Period, then clause (b) of this
definition will be deemed to apply.
"Responsible Officer" shall mean: (a) when used with respect to the
Trustee, any Vice President, any Assistant Vice President, any Trust Officer,
any Assistant Secretary or any other officer of the Trustee's Asset-Backed
Services Trust Group customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for the
administration of this Agreement; and (b) when used with respect to any Fiscal
Agent, any officer thereof.
"Review Package" shall mean a package of documents consisting of a
memorandum outlining the analysis and recommendation (in accordance with the
Servicing Standard) of the Master Servicer or the Special Servicer, as the case
may be, with respect to the matters that are the subject thereof, and copies of
all relevant documentation.
"Rule 144A Global Certificate" shall mean, with respect to any Class
of Book-Entry Non-Registered Certificates, one or collectively more global
certificates of such Class registered in the name of the Depository or its
nominee, in definitive, fully registered form without interest coupons, none of
which certificates bears a Regulation S Legend, and each of which certificates
has a Rule 144A CUSIP number.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest. If neither such rating
agency nor any successor remains in existence, "S&P" shall be deemed to refer to
such other nationally recognized statistical rating agency or other comparable
Person designated by the Depositor, notice of which designation shall be given
to the Trustee, any Fiscal Agent, the Master Servicer and the Special Servicer,
and specific ratings of Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Xxxxxxxx-Xxxxx Act" shall have the meaning assigned thereto in
Section 8.15(d).
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"Xxxxxxxx-Xxxxx Certification" shall have the meaning assigned thereto
in Section 8.15(d).
"SASCO II" shall mean Structured Asset Securities Corporation II or
any successor in interest.
"Scheduled Payment" shall mean, with respect to any Mortgage Loan, for
any Due Date following the Cut-off Date as of which it is outstanding, the
Monthly Payment on such Mortgage Loan that is or would be, as the case may be,
payable by the related Mortgagor on such Due Date under the terms of the related
Mortgage Note as in effect on the Closing Date, without regard to any subsequent
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, extension,
waiver or amendment of such Mortgage Loan granted or agreed to by the Special
Servicer pursuant to Section 3.20 (or, in the case of the GIC Office Trust Loan,
by the applicable GIC Office Servicer pursuant to the GIC Office Servicing
Agreement), and assuming that the full amount of each prior Scheduled Payment
has been made in a timely manner.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Seller/Depositor Notification" shall mean, with respect to any Trust
Mortgage Loan, a written notification executed (in each case promptly upon
becoming aware of such event) by a Responsible Officer of the Trustee, or a
Servicing Officer of the Master Servicer or the Special Servicer, as applicable,
and delivered to the Master Servicer, the Special Servicer and the Trustee
(except to the extent any of the foregoing three parties is the party delivering
the subject Seller/Depositor Notification) and, as applicable, to either the UBS
Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) or the Depositor
(in the case of a Xxxxxx Trust Mortgage Loan), in each case identifying and
describing the circumstances relating to any of the events set forth below,
which notification shall be substantially in the form of Exhibit N attached
hereto:
(i) the occurrence of a Material Document Defect or Material Document
Breach with respect to the subject Trust Mortgage Loan;
(ii) the direction to cure the Material Document Defect or Material
Breach with respect to the subject Trust Mortgage Loan within the time
period and subject to the conditions provided for in Section 2.03(a) (in
the case of a Xxxxxx Trust Mortgage Loan) or Section 5(a) of the
UBS/Depositor Mortgage Loan Purchase Agreement (in the case of a UBS Trust
Mortgage Loan), as applicable;
(iii) following or simultaneously with the occurrence of a Material
Document Defect, the existence or occurrence of a Servicing Transfer Event
with respect to the subject Trust Mortgage Loan;
(iv) following or simultaneously with the occurrence of a Material
Document Defect, the existence or occurrence of an assumption or a proposed
assumption with respect to the subject Trust Mortgage Loan;
(v) only (A) under the circumstances contemplated by the last
paragraph of Section 2.03(a) (in the case of a Xxxxxx Trust Mortgage Loan)
or Section 5(a) of the UBS/Depositor Mortgage Loan Purchase Agreement (in
the case of a UBS Trust Mortgage Loan), as applicable,
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and (B) following the expiration of the applicable Resolution Extension
Period and (C) following either the occurrence of a Servicing Transfer
Event or an assumption with respect to the subject Trust Mortgage Loan, as
applicable, the direction to cure the subject Material Document Defect
within 15 days of receipt of such Seller/Depositor Notification;
(vi) following the expiration of the 15-day period set forth in clause
(v) above, notification of the election by the Master Servicer or the
Special Servicer, as applicable, to perform the cure obligations with
respect to the subject Material Document Defect; and/or
(vii) the expiration of the applicable Resolution Extension Period
with respect to such Trust Mortgage Loan and the direction to promptly
repurchase such Trust Mortgage Loan.
In addition to the foregoing parties, a copy of each such Seller/Depositor
Notification shall be delivered to the Controlling Class Representative by the
Trustee (to the extent the Trustee knows the identity of the Controlling Class
Representative) and, in the case of an event described in clauses (v) and/or
(vii) of this definition, to internal counsel to the Depositor or counsel to the
UBS Mortgage Loan Seller, as applicable (to the extent known to the Trustee).
"Senior Certificate" shall mean any Class A-1, Class A-2, Class A-3,
Class A-4, Class X-CL or Class X-CP Certificate.
"Senior Serviced Mortgage Loan" shall mean each of the Somerset
Collection Pari Passu Mortgage Loans, the Xxxxxxxx Place Trust Mortgage Loan and
the Cumberland Place Trust Mortgage Loan.
"Serviced Combination Trust Mortgage Loan" shall mean each of the 000
Xxxxx Xxxxxx Trust Mortgage Loan, the Somerset Collection Trust Mortgage Loan,
the Xxxxxxxx Place Trust Mortgage Loan and the Cumberland Place Trust Mortgage
Loan, as applicable.
"Serviced Loan Combination" shall mean each the 000 Xxxxx Xxxxxx Loan
Pair, the Somerset Collection Loan Group, the Xxxxxxxx Place Loan Pair and the
Cumberland Place Loan Pair, as applicable.
"Serviced Mortgage Loan" shall mean each Mortgage Loan (including a
Specially Serviced Mortgage Loan), other than the GIC Office Trust Mortgage Loan
and the GIC Office Non-Trust Mortgage Loans.
"Serviced Non-Trust Mortgage Loan" shall mean each Non-Trust Mortgage
Loan that is a Serviced Mortgage Loan. Notwithstanding anything herein to the
contrary, none of the GIC Office Non-Trust Mortgage Loans shall in any event
constitute a Serviced Non-Trust Mortgage Loan hereunder.
"Serviced Non-Trust Mortgage Loan Noteholder" shall mean each holder
of the Mortgage Note for a Serviced Non-Trust Mortgage Loan. Notwithstanding
anything herein to the contrary, no GIC Office Non-Trust Mortgage Loan
Noteholder shall in any event constitute a Serviced Non-Trust Mortgage Loan
Noteholder hereunder.
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"Serviced Pari Passu Mortgage Loan" shall mean a 000 Xxxxx Xxxxxx
Mortgage Loan or a Somerset Collection Pari Passu Mortgage Loan, as applicable.
Notwithstanding anything herein to the contrary, neither the GIC Office Trust
Mortgage Loan nor the GIC Office Pari Passu Non-Trust Mortgage Loans shall in
any event constitute a Serviced Pari Passu Mortgage Loan hereunder.
"Serviced Pari Passu Non-Trust Mortgage Loan" shall mean the 000 Xxxxx
Xxxxxx Non-Trust Mortgage Loan and the Somerset Collection Pari Passu Non-Trust
Mortgage Loan. Notwithstanding anything herein to the contrary, none of the GIC
Office Pari Passu Non-Trust Mortgage Loans shall in any event constitute a
Serviced Pari Passu Non-Trust Mortgage Loan hereunder.
"Serviced Subordinate Non-Trust Mortgage Loan" shall mean each
Subordinate Non-Trust Mortgage Loan, other than the GIC Office Subordinate
Non-Trust Mortgage Loan.
"Serviced Trust Mortgage Loan" shall mean any Trust Mortgage Loan that
is a Serviced Mortgage Loan. Notwithstanding anything herein to the contrary,
the GIC Office Trust Mortgage Loan shall in no event constitute a Serviced Trust
Mortgage Loan hereunder.
"Servicer Reports" shall mean each of the files and reports comprising
the CMSA Investor Reporting Package (excluding the CMSA Bond Level File and the
CMSA Collateral Summary File) and the Supplemental Report.
"Servicing Account" shall have the meaning assigned thereto in Section
3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out of pocket" costs and expenses (including attorneys' fees and fees
and expenses of real estate brokers) incurred by the Master Servicer, the
Special Servicer, any Fiscal Agent or the Trustee in connection with the
servicing and administration of a Serviced Mortgage Loan, if a default is
imminent thereunder or a default, delinquency or other unanticipated event has
occurred with respect thereto, or in connection with the administration of any
Administered REO Property, including, but not limited to, the cost of (a)
compliance with the obligations of the Master Servicer, the Special Servicer,
any Fiscal Agent or the Trustee, if any, set forth in Section 3.03(c), (b) the
preservation, insurance, restoration, protection and management of a Mortgaged
Property, (c) obtaining any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds, (d) any enforcement or judicial proceedings with respect
to a Mortgaged Property, including foreclosures, (e) any Required Appraisal or
any other appraisal or update thereof expressly permitted or required to be
obtained hereunder, (f) the operation, management, maintenance and liquidation
of any REO Property, and (g) obtaining any related ratings confirmation;
provided that, notwithstanding anything to the contrary, "Servicing Advances"
shall not include allocable overhead of the Master Servicer, the Special
Servicer or the Trustee, such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses, or costs and expenses incurred by any such
party in connection with its purchase of any Mortgage Loan or REO Property
pursuant to any provision of this Agreement, the GIC Office Servicing Agreement
or any Co-Lender Agreement.
"Servicing Fees" shall mean: (a) with respect to each Serviced
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), the
Master Servicing Fee (if any) and the Special Servicing Fee; and (b) with
respect to the GIC Office Trust Mortgage Loan, the Master Servicing Fee.
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"Servicing File" shall mean, collectively, any and all documents
(other than documents required to be part of the related Mortgage File, except
as specifically provided below in this definition), in the possession of the
Master Servicer or the Special Servicer and relating to the origination and
servicing of any Serviced Mortgage Loan, including any original letter of credit
(together with any transfer or assignment documents related thereto), any
franchise agreement and any franchise comfort letter (together with any transfer
or assignment documents relating thereto), appraisals, surveys, engineering
reports, environmental reports, opinion letters of counsel to a related
Mortgagor, escrow agreements, property management agreements and, in the case of
a Serviced Non-Trust Mortgage Loan, a copy of the related Mortgage Note.
"Servicing Officer" shall mean any officer or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Serviced Mortgage Loans, whose name and
specimen signature appear on a list of servicing officers furnished by such
party to the Trustee and the Depositor on the Closing Date, as such list may be
amended from time to time.
"Servicing-Released Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing-Retained Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing Standard" shall mean, with respect to the Master Servicer
or the Special Servicer, to service and administer the Serviced Mortgage Loans
and any Administered REO Properties that such party is obligated to service and
administer pursuant to this Agreement: (i) in accordance with the higher of the
following standards of care: (A) the same manner in which, and with the same
care, skill, prudence and diligence with which, the Master Servicer or the
Special Servicer, as the case may be, services and administers comparable
mortgage loans with similar borrowers and comparable foreclosure properties for
other third-party portfolios (giving due consideration to the customary and
usual standards of practice of prudent institutional commercial mortgage lenders
servicing their own mortgage loans and foreclosure properties), and (B) the same
manner in which, and with the same care, skill, prudence and diligence with
which, the Master Servicer or Special Servicer, as the case may be, services and
administers comparable mortgage loans and foreclosure properties owned by the
Master Servicer or Special Servicer, as the case may be, in either case
exercising reasonable business judgment and acting in accordance with applicable
law, the terms of this Agreement and the terms of the respective Serviced
Mortgage Loans and any applicable co-lender, intercreditor and/or similar
agreements; (ii) with a view to: (A) the timely recovery of all payments of
principal and interest, including Balloon Payments, under the Serviced Mortgage
Loans or, in the case of any such Serviced Mortgage Loan that is (1) a Specially
Serviced Mortgage Loan or (2) a Serviced Mortgage Loan as to which the related
Mortgaged Property has become an REO Property, the maximization of recovery on
the subject Serviced Mortgage Loan to the Certificateholders (as a collective
whole) (or, if a Serviced Loan Combination is involved, the maximization of
recovery on such Loan Combination to the Certificateholders and the related
Serviced Non-Trust Mortgage Loan Noteholder(s) (as a collective whole)) of
principal and interest, including Balloon Payments, on a present value basis
(the relevant discounting of anticipated collections that will be distributable
to the Certificateholders (or, if a Serviced Loan Combination is involved, to
the Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (as a collective whole)) to be performed at the related Mortgage
Rate (or, in the case of a Serviced Loan Combination, at the weighted average of
the respective Mortgage Rates for the Mortgage Loans that comprise such Loan
Combination); and (iii) without regard to (A) any relationship,
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including as lender on any other debt (including mezzanine debt or a Non-Trust
Mortgage Loan), that the Master Servicer or the Special Servicer, as the case
may be, or any Affiliate thereof, may have with any of the related Mortgagors,
or any Affiliate thereof, or any other party to this Agreement; (B) the
ownership of any Certificate (or any Pari Passu Non-Trust Mortgage Loan
Securities) by the Master Servicer or the Special Servicer, as the case may be,
or any Affiliate thereof; (C) the obligation of the Master Servicer or the
Special Servicer, as the case may be, to make Advances; (D) the right of the
Master Servicer or the Special Servicer, as the case may be, or any Affiliate of
either of them, to receive compensation or reimbursement of costs hereunder
generally or with respect to any particular transaction; and (E) the ownership,
servicing or management for others of any other mortgage loan or real property
not subject to this Agreement by the Master Servicer or the Special Servicer, as
the case may be, or any Affiliate thereof.
"Servicing Transfer Event" shall mean, with respect to any Serviced
Mortgage Loan, the occurrence of any of the events described in clauses (a)
through (g) of the definition of "Specially Serviced Mortgage Loan".
"Single Certificate" shall mean, for purposes of Section 4.02, a
hypothetical Regular Interest Certificate evidencing an initial $1,000
denomination.
"Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents and/or the related loan documents
provide substantially to the effect that: (i) it was formed or organized solely
for the purpose of either owning and operating the Mortgaged Property or
Properties securing one or more Mortgage Loans, or owning and pledging
Defeasance Collateral in connection with the defeasance of a Defeasance Mortgage
Loan, as the case may be, (ii) it may not engage in any business unrelated to
such Mortgaged Property or Properties or such Defeasance Collateral, as the case
may be, (iii) it will not have any assets other than those related to its
interest in and operation of such Mortgaged Property or such Defeasance
Collateral, as the case may be, (iv) it may not incur indebtedness other than
incidental to its ownership and operation of the applicable Mortgaged Property
or Properties or Defeasance Collateral, as the case may be, (v) it will maintain
its own books and records and accounts separate and apart from any other Person,
(vi) it will hold itself out as a legal entity, separate and apart from any
other Person, and (vii) in the case of such an entity whose sole purpose is
owning or operating a Mortgaged Property, it will have an independent director
or, if such entity is a partnership or a limited liability company, at least one
general partner or limited liability company member thereof, as applicable,
which shall itself be a "single purpose entity" (having as its sole asset its
interest in the Single Purpose Entity) with an independent director.
"Somerset Collection Available Remittance Amount" shall mean, with
respect to any Somerset Collection Remittance Date, the "Available Remittance
Amount" under the Somerset Collection Co-Lender Agreement.
"Somerset Collection Change of Control Event" shall mean the event
that occurs when: (a) the principal amount of the Somerset Collection
Subordinate Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto (net of any existing Appraisal Reduction Amount with respect to
the Somerset Collection Loan Group) is less than 27.5% of an amount equal to (i)
the original principal amount of the Somerset Collection Subordinate Non-Trust
Mortgage Loan, less (ii) any principal payments allocated to, and received on,
the Mortgage Note for the Somerset Collection Subordinate Non-Trust Mortgage
Loan made by the related borrower; and (b) the Somerset Collection
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Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto has not been repaid in full.
"Somerset Collection Co-Lender Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"Somerset Collection Collection Period" shall mean, with respect to
any Somerset Collection Master Servicer Remittance Date or any Distribution
Date, the period commencing on the day immediately following the Somerset
Collection Determination Date in the calendar month preceding the month in which
such Somerset Collection Master Servicer Remittance Date or such Distribution
Date, as the case may be, occurs and ending on and including the Somerset
Collection Determination Date in the calendar month in which such Somerset
Collection Master Servicer Remittance Date or such Distribution Date, as the
case may be, occurs.
"Somerset Collection Controlling Party" shall mean the Somerset
Collection Directing Lender or any representative appointed thereby, consistent
with Section 3.02(d) of the Somerset Collection Co-Lender Agreement, to exercise
the rights and powers of the Somerset Collection Directing Lender under the
Somerset Collection Co-Lender Agreement or this Agreement.
"Somerset Collection Cure Rights" shall mean the cure rights on the
part of the Somerset Collection Subordinate Non-Trust Mortgage Loan Noteholder
provided for in Article VII of the Somerset Collection Co-Lender Agreement.
"Somerset Collection Custodial Account" shall mean the segregated
account or accounts created and maintained by the Master Servicer pursuant to
Section 3.04B on behalf of the Somerset Collection Noteholders, which shall be
entitled "[NAME OF MASTER SERVICER], as Master Servicer, in trust for [NAMES OF
SOMERSET COLLECTION NOTEHOLDERS], as their interests may appear".
"Somerset Collection Determination Date" shall mean the "Determination
Date" under the Somerset Collection Co-Lender Agreement.
"Somerset Collection Directing Lender" shall mean, as of any date of
determination, the "Directing Lender" under the Somerset Collection Co-Lender
Agreement.
"Somerset Collection Loan Group" shall have the meaning assigned
thereto in the Preliminary Statement (and shall include any successor REO
Mortgage Loans with respect to the Somerset Collection Mortgage Loans).
"Somerset Collection Master Servicer Remittance Date" shall mean the
"Remittance Date" under the Somerset Collection Co-Lender Agreement.
"Somerset Collection Mortgage Loan" shall mean the Somerset Collection
Trust Mortgage Loan or any Somerset Collection Non-Trust Mortgage Loan, as
applicable.
"Somerset Collection Mortgaged Property" shall mean the mortgaged
property identified on the Trust Mortgage Loan Schedule as the Somerset
Collection.
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"Somerset Collection Non-Trust Mortgage Loans" shall have the meaning
assigned thereto in the Preliminary Statement.
"Somerset Collection Non-Trust Mortgage Loan Noteholders" shall mean,
together, the Somerset Collection Pari Passu Non-Trust Mortgage Loan Noteholder
and the Somerset Collection Subordinate Non-Trust Mortgage Loan Noteholder.
"Somerset Collection Noteholders" shall mean, collectively, the holder
of the Mortgage Note for the Somerset Collection Trust Mortgage Loan, together
with the Somerset Collection Non-Trust Mortgage Loan Noteholders.
"Somerset Collection Pari Passu Mortgage Loans" shall mean the
Somerset Collection Trust Mortgage Loan and the Somerset Collection Pari Passu
Non-Trust Mortgage Loan.
"Somerset Collection Pari Passu Non-Trust Mortgage Loan" shall have
the meaning assigned thereto in the Preliminary Statement.
"Somerset Collection Pari Passu Non-Trust Mortgage Loan Noteholder"
shall mean the holder of the Somerset Collection Pari Passu Non-Trust Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto).
"Somerset Collection Pari Passu Non-Trust Mortgage Loan Securities"
shall mean any securities evidencing an interest in, or secured by, the Somerset
Collection Pari Passu Non-Trust Mortgage Loan or any successor REO Mortgage Loan
with respect thereto.
"Somerset Collection Pari Passu Non-Trust Mortgage Loan Securitization
Agreement" shall mean any agreement governing the securitization of the Somerset
Collection Pari Passu Non-Trust Mortgage Loan or any successor REO Mortgage Loan
with respect thereto.
"Somerset Collection Pari Passu Non-Trust Mortgage Loan Securitization
Trust" shall mean any commercial mortgage securitization trust similar to the
commercial mortgage securitization trust contemplated by this Agreement, that
from time to time holds the Somerset Collection Pari Passu Non-Trust Mortgage
Loan or any successor REO Mortgage Loan with respect thereto.
"Somerset Collection Preliminary Master Servicer Remittance Report"
shall mean a preliminary report prepared based on information in the possession
of the Master Servicer (including any information received from the Special
Servicer) with respect to each Somerset Collection Non-Trust Mortgage Loan (or
any successor REO Mortgage Loan with respect thereto), as of the date of such
report, delivered by the Master Servicer to each Somerset Collection Non-Trust
Mortgage Loan Noteholder, containing (i) such information regarding each
Somerset Collection Non-Trust Mortgage Loan (or any successor REO Mortgage Loan
with respect thereto) as will permit the related Somerset Collection Non-Trust
Mortgage Loan Noteholder (or any applicable servicer, trustee or paying agent on
behalf thereof) to calculate the estimated amounts required to be distributed
pursuant to any Somerset Collection Pari Passu Non-Trust Mortgage Loan
Securitization Agreement and to furnish related statements pursuant to any
Somerset Collection Pari Passu Non-Trust Mortgage Loan Securitization Agreement,
including information, as to each such Somerset Collection Non-Trust Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto), as applicable,
with respect to scheduled principal balances, scheduled monthly interest
payments and unscheduled payments and collections and
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(ii) any other material information in the possession of the Master Servicer
(including information received from the Special Servicer) concerning any
Somerset Collection Non-Trust Mortgage Loan which is in default (or any
successor REO Mortgage Loan with respect thereto), the information customarily
provided by the Master Servicer concerning any Somerset Collection Non-Trust
Mortgage Loan which is not in default, and such additional information as is
agreed to from time to time by the Master Servicer.
"Somerset Collection REO Account" shall mean the segregated account or
accounts created and maintained by the Special Servicer pursuant to Section 3.16
on behalf of the Somerset Collection Noteholders, which shall be entitled "[NAME
OF SPECIAL SERVICER], as Special Servicer, in trust for [NAMES OF SOMERSET
COLLECTION NOTEHOLDERS], as their interests may appear".
"Somerset Collection REO Mortgage Loan" shall mean any REO Mortgage
Loan relating to a Somerset Collection Mortgage Loan.
"Somerset Collection REO Property" shall mean the Somerset Collection
Mortgaged Property, at such time that it becomes an REO Property hereunder.
"Somerset Collection REO Trust Mortgage Loan" shall mean any REO Trust
Mortgage Loan relating to the Somerset Collection Trust Mortgage Loan.
"Somerset Collection Specially Designated Servicing Actions" shall
mean, with respect to the Somerset Collection Loan Group or any related REO
Property, any of the actions specified in clauses (i) through (xv) of the first
paragraph of Section 3.02(a) of the Somerset Collection Co-Lender Agreement.
"Somerset Collection Subordinate Non-Trust Mortgage Loan" shall have
the meaning assigned thereto in the Preliminary Statement.
"Somerset Collection Subordinate Non-Trust Mortgage Loan Noteholder"
shall mean the holder of the Somerset Collection Subordinate Non-Trust Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto).
"Somerset Collection Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement, which mortgage loan is identified
on the Trust Mortgage Loan Schedule by loan number 3 and is, together with the
Somerset Collection Non-Trust Mortgage Loans, secured by the same Mortgage(s) on
the Somerset Collection Mortgaged Property.
"Special Servicer" shall mean, subject to Section 7.01(c), Midland, in
its capacity as special servicer hereunder, or any successor special servicer
appointed as herein provided.
"Special Servicer Backup Certification" shall have the meaning
assigned thereto in Section 8.15(i).
"Special Servicing Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan and REO Mortgage Loan that relates to an Administered REO
Property, the fee designated as such in, and payable to the Special Servicer
pursuant to, Section 3.11(c).
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"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan that relates to an
Administered REO Property, 0.25% per annum.
"Specially Designated Mortgage Loan Documents" shall mean, with
respect to any Trust Mortgage Loan, the following documents collectively:
(i) the original executed Mortgage Note for such Trust Mortgage Loan
(or, alternatively, if the original executed Mortgage Note has
been lost, a lost note affidavit and indemnity with a copy of
such Mortgage Note);
(ii) an original or copy of the Mortgage (with or without recording
information);
(iii) the original or a copy of the policy or certificate of lender's
title insurance issued in connection with such Trust Mortgage
Loan (or, if such policy has not been issued, a "marked-up" pro
forma title policy, or an irrevocable, binding commitment to
issue such title insurance policy);
(iv) an original or copy of any Ground Lease and Ground Lease
estoppels, if any, relating to such Trust Mortgage Loan; and
(v) with respect to Trust Mortgage Loans secured by hospitality
properties only, the related franchise agreement (if any) and
franchisor comfort letter (if any).
provided that whenever the term "Specially Designated Mortgage Loan Documents"
is used to refer to documents actually received by the Trustee or by a Custodian
on its behalf, such term, with respect to any receipt or certification by the
Trustee or a Custodian on its behalf for documents described in clauses (iv) and
(v) of this definition, shall be deemed to include such documents only to the
extent the Trustee or a Custodian on its behalf has actual knowledge of their
existence; and provided, further, that the only Specially Designated Mortgage
Loan Document with respect to the GIC Office Trust Mortgage Loan shall be the
document described in clause (i) of this definition.
"Specially Designated Servicing Action" means, with respect to the
Serviced Mortgage Loans and Administered REO Properties, any of the following
actions:
(i) any proposed or actual foreclosure upon or comparable
conversion (which may include acquisitions of an Administered REO Property)
of the ownership of properties securing such of the Specially Serviced
Mortgage Loans as come into and continue in default;
(ii) any modification, extension, amendment or waiver of a
monetary term (including the timing of payments, but excluding the waiver
of Default Charges) or any material non-monetary term (including any
material term relating to insurance) of a Mortgage Loan;
(iii) any proposed sale of a Defaulted Trust Mortgage Loan or an
Administered REO Property (other than in connection with the termination of
the Trust Fund) for less than the related Purchase Price;
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(iv) any acceptance of a discounted payoff with respect to a
Specially Serviced Mortgage Loan;
(v) any determination to bring an Administered REO Property, or a
Mortgaged Property securing a Serviced Mortgage Loan that is in default,
into compliance with applicable environmental laws or to otherwise address
Hazardous Materials located at such Administered REO Property or such
Mortgaged Property, as the case may be;
(vi) any release of collateral for a Serviced Mortgage Loan,
other than any release of collateral that (A) is required by the terms of
such Mortgage Loan (with no material discretion by the mortgagee), (B)
occurs upon satisfaction of such Mortgage Loan, (C) occurs in connection
with a defeasance, or (D) is approved by the Master Servicer pursuant to
Section 3.20(c);
(vii) any acceptance of substitute or additional collateral for a
Serviced Mortgage Loan, other than any acceptance of substitute or
additional collateral that (A) is required by the terms of such Mortgage
Loan (with no material discretion by the mortgagee), (B) occurs in
connection with a defeasance, or (C) is approved by the Master Servicer
pursuant to Section 3.20(c);
(viii) any waiver of a "due-on-sale" or "due-on-encumbrance"
clause with respect to any Serviced Mortgage Loan;
(ix) any determination by the Special Servicer that a Servicing
Transfer Event of the type described in clause (b) of the definition of
"Specially Serviced Mortgage Loan" has occurred;
(x) any determination by the Special Servicer that an Acceptable
Insurance Default has occurred;
(xi) any acceptance of an assumption agreement releasing a
borrower from liability under a Serviced Mortgage Loan;
(xii) any acceptance of a change in the property management
company (provided that the unpaid principal balance of the related Serviced
Mortgage Loan is greater than $5,000,000) or, if applicable, hotel
franchise for any Mortgaged Property;
(xiii) any release of a letter of credit posted in lieu of an
earnout reserve with respect to a Mortgaged Property, other than as
required by the terms of the related Serviced Mortgage Loan (with no
material discretion by the mortgagee); provided that the amount of such
letter of credit is at least equal to the lesser of (a) 2% of the unpaid
principal balance of the related Serviced Mortgage Loan and (b) $200,000;
(xiv) any extension of the maturity date of a Serviced Mortgage
Loan that results in the remaining term of any related ground lease
(together with extensions at the sole option of the mortgagee) being less
than 10 years beyond the amortization term of such Mortgage Loan; and
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(xv) any six-month extension by the Master Servicer of the
maturity date of a Performing Five-Year Mortgage Loan pursuant to Section
3.20(c).
As used in clauses (vi) and (vii) above, the term "material discretion" shall
mean that the relevant decision regarding the release of collateral or the
acceptance of substitute or additional collateral, as applicable, is in the
discretion of the mortgagee, and such decision need not be based upon the
satisfaction of specified objective conditions, the satisfactory delivery of
certain factual evidence or opinions or the satisfaction of any other specified
objective criteria that is set forth in the related loan documents.
"Specially Serviced Mortgage Loan" shall mean any Serviced Mortgage
Loan as to which any of the following events has occurred:
(a) the related Mortgagor has failed to make when due any Monthly
Payment (including a Balloon Payment), which failure continues, or the
Master Servicer determines, in its reasonable, good faith judgment, will
continue, unremedied (without regard to any grace period) by the related
Mortgagor, any related guarantor or otherwise (including, in the case of a
Senior Serviced Mortgage Loan, by the related Subordinate Non-Trust
Mortgage Loan Noteholder exercising related Cure Rights) (i) except in the
case of a Balloon Mortgage Loan delinquent in respect of its Balloon
Payment, for 60 days beyond the date on which the subject payment was due,
or (ii) solely in the case of a delinquent Balloon Payment, (A) for one day
(in the event that neither clause (B) nor clause (C) below is applicable),
or (B) for 30 days (with the consent of the Somerset Collection Controlling
Party (in the case of a Somerset Collection Mortgage Loan), the Cumberland
Place Controlling Party (in the case of a Cumberland Place Mortgage Loan)
or the Controlling Class Representative (in the case of any other Serviced
Mortgage Loan), as applicable, for such 30-day forbearance in deeming such
Serviced Mortgage Loan a "Specially Serviced Mortgage Loan" under clause
(A) above), or (C) if clause (B) above otherwise applies and, before the
end of the 30-day period provided for in clause (B) above, the related
Mortgagor has delivered a refinancing commitment satisfactory to the Master
Servicer and the Somerset Collection Controlling Party (in the case of a
Somerset Collection Mortgage Loan), the Cumberland Place Controlling Party
(in the case of a Cumberland Place Mortgage Loan) or the Controlling Class
Representative (in the case of any other Serviced Mortgage Loan), as
applicable, and if such Mortgagor continues timely to make monthly payments
equivalent to the related Assumed Monthly Payments, for a period (not to
exceed 120 days) beyond the related maturity date ending on the date on
which it is determined that the refinancing could not be reasonably be
expected to occur; or
(b) the Master Servicer or, subject to Section 6.11, Section 6.12,
Section 6.13, Section 6.14 and/or Section 6.15, in each case if and as
applicable, the Special Servicer shall have determined, in accordance with
the Servicing Standard, based on communications with the related Mortgagor,
that a default in the making of a Monthly Payment on such Serviced Mortgage
Loan, including a Balloon Payment, is likely to occur and is likely to
remain unremedied (without regard to any grace period) by the related
Mortgagor, any related guarantor or otherwise (including, in the case of a
Senior Serviced Mortgage Loan, by the related Subordinate Non-Trust
Mortgage Loan Noteholder exercising related Cure Rights) for at least the
applicable period contemplated by clause (a) of this definition; provided
that, upon the occurrence of a potential default in the making of the
Balloon Payment on a Five-Year Mortgage
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Loan, such Serviced Mortgage Loan shall not be deemed to be a "Specially
Serviced Mortgage Loan" pursuant to this paragraph (b) if, with respect to
such event, the Master Servicer has determined (subject to Section 6.11,
Section 6.12, Section 6.13, Section 6.14 and/or Section 6.15, in each case
if and as applicable) that the Master Servicer's granting of a six-month
extension of the maturity date of the subject Serviced Mortgage Loan
(subject to a limit of two such six-month extensions for the subject
Five-Year Mortgage Loan) is in accordance with the Servicing Standard, and
at such time no other circumstance identified in clauses (a) through (g) of
this definition exists that would cause such Serviced Mortgage Loan to be
characterized as a Specially Serviced Mortgage Loan; or
(c) there shall have occurred a default (other than as described in
clause (a) above and other than an Acceptable Insurance Default) that (i)
materially impairs the value of the related Mortgaged Property as security
for such Serviced Mortgage Loan or otherwise materially adversely affects
the interests of Certificateholders (or, in the case of a Serviced
Non-Trust Mortgage Loan, the related Non-Trust Mortgage Loan Noteholder),
and (ii) continues unremedied by the related Mortgagor, any related
guarantor or otherwise (including, in the case of a Senior Serviced
Mortgage Loan, by the related Subordinate Non-Trust Mortgage Loan
Noteholder exercising related Cure Rights) for either (A) one Business Day
(but only if, pursuant to the related loan documents, the subject default
gives rise to immediate acceleration without application of a cure period
under such Serviced Mortgage Loan) or (B) otherwise, the greater of (1) the
applicable grace period under the terms of such Senior Serviced Mortgage
Loan (plus, solely in the case of a Senior Serviced Mortgage Loan, if
applicable, the applicable cure period for exercising related Cure Rights
under the terms of the related Co-Lender Agreement) and (2) 30 days; and
provided, further, that, notwithstanding the immediately preceding proviso,
in the case of a default that relates to the failure by the related
Mortgagor to maintain either all risk insurance that covers acts of
terrorism or a separate insurance policy that covers acts of terrorism and,
as to which the failure to maintain such insurance has been determined by
the Special Servicer not to constitute an "Acceptable Insurance Default",
such default must continue unremedied for a period of at least 30 days
beyond such determination by the Special Servicer; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the related Mortgagor and such decree or
order shall have remained in force and not dismissed for a period of 60
days; or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to such Mortgagor or of or relating to all or substantially all of
its property; or
(f) the related Mortgagor shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable insolvency or
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reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(g) the Master Servicer shall have received notice of the commencement
of foreclosure or similar proceedings with respect to the related Mortgaged
Property;
provided, however, that a Serviced Mortgage Loan will cease to be a Specially
Serviced Mortgage Loan when a Liquidation Event has occurred with respect to
such Serviced Mortgage Loan, when the related Mortgaged Property has become an
REO Property or, so long as at such time no circumstance identified in clauses
(a) through (g) above exists that would cause such Serviced Mortgage Loan to
continue to be characterized as a Specially Serviced Mortgage Loan, when:
(w) with respect to the circumstances described in clause (a) of this
definition, the related Mortgagor has made three consecutive full
and timely Monthly Payments under the terms of such Mortgage Loan
(as such terms may be changed or modified in connection with a
bankruptcy or similar proceeding involving the related Mortgagor
or by reason of a modification, extension, waiver or amendment
granted or agreed to by the Master Servicer or the Special
Servicer pursuant to Section 3.20);
(x) with respect to the circumstances described in clauses (b), (d),
(e) and (f) of this definition, such circumstances cease to exist
in the good faith, reasonable judgment of the Special Servicer,
but, with respect to any bankruptcy or insolvency proceedings
described in clauses (d), (e) and (f), no later than the entry of
an order or decree dismissing such proceeding;
(y) with respect to the circumstances described in clause (c) of this
definition, such default is cured as determined by the Special
Servicer in its reasonable, good faith judgment; and
(z) with respect to the circumstances described in clause (g) of this
definition, such proceedings are terminated.
The Special Servicer may conclusively rely on the Master Servicer's
determination as to whether a Servicing Transfer Event has occurred giving rise
to a Serviced Mortgage Loan's becoming a Specially Serviced Mortgage Loan. If
any Serviced Combination Trust Mortgage Loan becomes a Specially Serviced
Mortgage Loan, then the other Mortgage Loan or each of the other Mortgage Loans,
as the case may be, in such Loan Combination shall also become a Specially
Serviced Mortgage Loan; provided that if a Subordinate Non-Trust Mortgage Loan
Noteholder prevents the occurrence of a Servicing Transfer Event with respect to
the related Senior Serviced Mortgage Loan(s) through the exercise of related
Cure Rights with respect to such Senior Serviced Mortgage Loan(s), then the
existence of such Servicing Transfer Event with respect to the subject
Subordinate Non-Trust Mortgage Loan (because the subject Cure Rights do not
include the cure of defaults under the subject Subordinate Non-Trust Mortgage
Loan) will not, in and of itself, result in any related Senior Serviced Mortgage
Loan becoming a Specially Serviced Mortgage Loan unless a separate Servicing
Transfer Event has occurred with respect thereto.
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None of the Mortgage Loans comprising the GIC Office Loan Group shall
constitute a Specially Serviced Mortgage Loan hereunder.
"Specially Serviced Trust Mortgage Loan" shall mean any Trust Mortgage
Loan that is a Specially Serviced Mortgage Loan.
"Startup Day" shall mean, with respect to each REMIC Pool, the day
designated as such in Section 10.01(c).
"Stated Maturity Date" shall mean, with respect to any Mortgage Loan,
the Due Date specified in the related Mortgage Note (as in effect on the Closing
Date) on which the last payment of principal is due and payable under the terms
of such Mortgage Note (as in effect on the Closing Date), without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, extension,
waiver or amendment of such Mortgage Loan granted or agreed to by the Special
Servicer (or the Master Servicer, if applicable) pursuant to Section 3.20 (or,
in the case of the GIC Office Trust Mortgage Loan, by a GIC Office Servicer
pursuant to the GIC Office Servicing Agreement) and, in the case of an ARD
Mortgage Loan, without regard to its Anticipated Repayment Date.
"Stated Principal Balance" shall mean: (a) with respect to any Trust
Mortgage Loan (and any successor REO Trust Mortgage Loan with respect thereto),
the Cut-off Date Balance of such Trust Mortgage Loan, as permanently reduced on
each Distribution Date (to not less than zero) by (i) that portion, if any, of
the Principal Distribution Amount for such Distribution Date allocable to such
Trust Mortgage Loan (or any such successor REO Trust Mortgage Loan with respect
thereto), without giving effect to any adjustments pursuant to Section 1.03 in
connection with the calculation of the Adjusted Principal Distribution Amount,
and (ii) the principal portion of any Realized Loss incurred in respect of such
Trust Mortgage Loan (or any such successor REO Trust Mortgage Loan with respect
thereto) during the applicable related Collection Period (or, in the case of a
forgiveness of principal or a Final Recovery Determination with respect to the
GIC Office Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, during the related GIC Office Collection Period) (without
duplication of any previous reduction to the Stated Principal Balance of such
Trust Mortgage Loan under clause (i) above based on an Advance of any amount
that constitutes part of such principal portion of such Realized Loss); and (b)
with respect to any Serviced Non-Trust Mortgage Loan (and any successor REO
Mortgage Loan with respect thereto), the Cut-off Date Balance of such Non-Trust
Mortgage Loan, as permanently reduced on each related Master Servicer Remittance
Date (to not less than zero) by (i) any principal amounts in respect of such
Non-Trust Mortgage Loan (or any such successor REO Mortgage Loan with respect
thereto) distributed to the related Non-Trust Mortgage Loan Noteholder on such
Master Servicer Remittance Date, and (ii) the principal portion of any Realized
Loss incurred in respect of such Non-Trust Mortgage Loan (or any such successor
REO Mortgage Loan with respect thereto) in connection with a Liquidation Event
or the forgiveness of principal during the related Collection Period.
Notwithstanding the foregoing, if a Liquidation Event occurs in respect of any
Serviced Mortgage Loan or REO Property, then the "Stated Principal Balance" of
such Mortgage Loan or of the related REO Mortgage Loan, as the case may be,
shall be zero commencing as of the Distribution Date (or, in the case of a
Serviced Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto, the related Master Servicer Remittance Date) in the applicable
Collection Period next following the applicable Collection Period in which such
Liquidation Event occurred; provided that, in the case of the GIC Office Trust
Mortgage Loan or any GIC Office REO
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Trust Mortgage Loan, if the subject Liquidation Event is a Final Recovery
Determination made by the GIC Office Special Servicer with respect to such Trust
Mortgage Loan or REO Trust Mortgage Loan, as the case may be, then references to
"Collection Period" in this sentence shall be deemed to mean the "GIC Office
Collection Period".
"Subordinate Available Distribution Amount" shall mean, with respect
to any Distribution Date, the excess, if any, of the Available Distribution
Amount for such Distribution Date, over the aggregate distributions, if any, to
be made on the Senior Certificates on such Distribution Date pursuant to Section
4.01(a).
"Subordinate Certificate" shall mean any Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class P, Class Q, Class S, Class T, Class R-I, Class R-II or Class R-III
Certificate.
"Subordinate Non-Trust Mortgage Loan" shall mean the GIC Office
Subordinate Non-Trust Mortgage Loan, the Somerset Collection Subordinate
Non-Trust Mortgage Loan, the Xxxxxxxx Place Non-Trust Mortgage Loan and the
Cumberland Place Non-Trust Mortgage Loan, as applicable.
"Subordinate Non-Trust Mortgage Loan Noteholder" shall mean the GIC
Office Subordinate Non-Trust Mortgage Loan Noteholder, the Somerset Collection
Subordinate Non-Trust Mortgage Loan Noteholder, the Xxxxxxxx Place Non-Trust
Mortgage Loan Noteholder and the Cumberland Place Non-Trust Mortgage Loan
Noteholder, as applicable.
"Sub-Servicer" shall mean any Person with which the Master Servicer or
the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean the written contract between the
Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer,
on the other hand, relating to servicing and administration of Serviced Mortgage
Loans as provided in Section 3.22.
"Subsequent Exchange Act Reports" shall have the meaning assigned
thereto in Section 8.15(a).
"Supplemental Report" shall mean have the meaning assigned thereto in
Section 4.02(a).
"Tax Administrator" shall mean any tax administrator appointed
pursuant to Section 8.13 (or, in the absence of any such appointment, the
Trustee).
"Tax Matters Person" shall mean, with respect to any REMIC Pool, the
Person designated as the "tax matters person" of such REMIC Pool in the manner
provided under Treasury regulations section 1.860F-4(d) and Treasury regulations
section 301.6231(a)(7)-1, which Person shall be the Plurality Residual Interest
Certificateholder in respect of the related Class of Residual Interest
Certificates.
"Tax Returns" shall mean the federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each REMIC Pool due to its classification as
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a REMIC under the REMIC Provisions, and the federal income tax return to be
filed on behalf of the Grantor Trusts created hereunder due to their
classification as Grantor Trusts, together with any and all other information,
reports or returns that may be required to be furnished to the
Certificateholders or filed with the IRS under any applicable provisions of
federal tax law or any other governmental taxing authority under applicable
state and local tax law.
"Total Principal Reinstatement Amount" shall mean, with respect to any
Distribution Date, an amount (to be calculated by the Trustee immediately
following, and after taking into account, all distributions to be made with
respect to the Certificates on such Distribution Date) equal to the lesser of:
(1) the amount, if any, by which (a) the aggregate Stated Principal Balance of
the Mortgage Pool that will be outstanding immediately following the subject
Distribution Date, exceeds (b) the aggregate of the Class Principal Balances of
all the Classes of Principal Balance Certificates (after taking into account the
distributions made with respect to the Certificates on the subject Distribution
Date, but prior to any adjustments to the Class Principal Balances of the
respective Classes of Principal Balance Certificates pursuant to Section 4.04 or
Section 4.05); and (2) the amount, if any, by which (a) the aggregate Loss
Reimbursement Amount in respect of all the Classes of Principal Balance
Certificates for the subject Distribution Date, exceeds (b) the total portion of
such aggregate Loss Reimbursement Amount reimbursed in respect of all of the
Classes of Principal Balance Certificates for the subject Distribution Date, if
any, pursuant to Section 4.01(a) and/or Section 4.01(b).
"Transfer" shall mean any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement" shall have the meaning assigned
thereto in Section 5.02(d)(i)(B).
"Transferee" shall mean any Person who is acquiring, by Transfer, any
Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing of, by Transfer,
any Ownership Interest in a Certificate.
"Trust" shall mean the common law trust created hereunder.
"Trust Collection Period" shall mean, with respect to any Distribution
Date or Trust Master Servicer Remittance Date, the period commencing on the day
immediately following the Trust Determination Date in the calendar month
preceding the month in which such Distribution Date or Trust Master Servicer
Remittance Date, as the case may be, occurs (or, in the case of each of the
initial Distribution Date and the initial Trust Master Servicer Remittance Date,
commencing immediately following the Cut-off Date) and ending on and including
the Trust Determination Date in the calendar month in which such Distribution
Date or Trust Master Servicer Remittance Date, as the case may be, occurs.
"Trust Determination Date" shall mean the 11th calendar day of each
month (or, if such 11th day is not a Business Day, the Business Day immediately
following), commencing in April 2004.
"Trust Fund" shall mean, collectively, all of the assets of REMIC I,
REMIC II and REMIC III, together with the Grantor Trust Assets.
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"Trust Master Servicer Remittance Date" shall mean the date each
month, commencing in April 2004, on which, among other things, the Master
Servicer is required to (i) make P&I Advances and (ii) transfer the Master
Servicer Remittance Amount and any Excess Liquidation Proceeds to the Trustee,
which date shall be the Business Day immediately preceding each Distribution
Date.
"Trust Mortgage Loan" shall mean each of the mortgage loans listed on
the Trust Mortgage Loan Schedule and from time to time held in the Trust Fund.
As used herein, the term "Trust Mortgage Loan" includes the related Mortgage
Note, Mortgage and other security documents contained in the related Mortgage
File or otherwise held on behalf of the Trust.
"Trust Mortgage Loan Schedule" shall mean the list of Trust Mortgage
Loans transferred on the Closing Date to the Trustee as part of the Trust Fund,
attached hereto as Schedule I (and also delivered to the Trustee and the Master
Servicer in a computer readable format). Such list shall set forth the following
information with respect to each Trust Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) and name
of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) Stated Maturity
Date;
(vii) in the case of a Balloon Trust Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the (A) Administrative Cost Rate and (B) primary servicing fee
rate;
(x) whether such Trust Mortgage Loan is secured by a Ground Lease;
(xi) the related Mortgage Loan Seller;
(xii) whether such Trust Mortgage Loan is a Defeasance Mortgage Loan;
(xiii) whether such Trust Mortgage Loan is an ARD Mortgage Loan and,
if so, the Anticipated Repayment Date and Additional Interest
Rate; and
(xiv) whether such Trust Mortgage Loan is a Cross-Collateralized
Mortgage Loan and the Cross-Collateralized Group to which it
belongs.
"Trustee" shall mean Xxxxx Fargo, in its capacity as trustee
hereunder, or any successor trustee appointed as herein provided.
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"Trustee Account" shall have the meaning assigned thereto in Section
3.06(a).
"Trustee Backup Certification" shall have the meaning assigned thereto
in Section 8.15(g).
"Trustee Fee" shall mean, with respect to each Distribution Date, an
amount equal to one-twelfth of the product of (i) the Trustee Fee Rate,
multiplied by (ii) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately prior to such Distribution Date.
"Trustee Fee Rate" shall mean 0.0019% per annum.
"Trustee Liability" shall have the meaning assigned thereto in Section
8.05(b).
"UBS/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of March 23, 2004, between the
UBS Mortgage Loan Seller and the Depositor.
"UBS Mortgage Loan Seller" shall mean UBS Real Estate Investments Inc.
or its successor in interest.
"UBS Trust Mortgage Loan" shall mean any Trust Mortgage Loan
transferred by the UBS Mortgage Loan Seller to the Depositor, pursuant to the
UBS/Depositor Mortgage Loan Purchase Agreement.
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement executed
(if required by the UCC) and filed pursuant to the UCC.
"Uncertificated Accrued Interest" shall mean the interest accrued from
time to time with respect to any REMIC I Regular Interest or REMIC II Regular
Interest, the amount of which interest shall equal: (a) in the case of any REMIC
I Regular Interest for any Interest Accrual Period, one-twelfth of the product
of (i) the annual REMIC I Remittance Rate applicable to such REMIC I Regular
Interest for such Interest Accrual Period, multiplied by (ii) the Uncertificated
Principal Balance of such REMIC I Regular Interest outstanding immediately prior
to the related Distribution Date; and (b) in the case of any REMIC II Regular
Interest for any Interest Accrual Period, one-twelfth of the product of (i) the
annual REMIC II Remittance Rate applicable to such REMIC II Regular Interest for
such Interest Accrual Period, multiplied by (ii) the Uncertificated Principal
Balance of such REMIC II Regular Interest outstanding immediately prior to the
related Distribution Date. Each REMIC I Regular Interest and REMIC II Regular
Interest shall accrue interest on a 30/360 Basis.
"Uncertificated Distributable Interest" shall mean: (a) with respect
to any REMIC I Regular Interest for any Distribution Date, an amount of interest
equal to the amount of Uncertificated Accrued Interest in respect of the subject
REMIC I Regular Interest for the related Interest Accrual Period, reduced (to
not less than zero) by the product of (i) any Net Aggregate Prepayment Interest
Shortfall for such Distribution Date, multiplied by (ii) a fraction, the
numerator of which is the amount of Uncertificated Accrued Interest in respect
of the subject REMIC I Regular Interest for the related Interest Accrual Period,
and the denominator of which is the aggregate amount of Uncertificated
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Accrued Interest in respect of all the subject REMIC I Regular Interest for the
related Interest Accrual Period, and the denominator of which is the aggregate
amount of Uncertificated Accrued Interest in respect of all the REMIC I Regular
Interests for the related Interest Accrual Period; and (b) with respect to any
REMIC II Regular Interest for any Distribution Date, subject to Section 4.05(d),
an amount of interest equal to the amount of Uncertificated Accrued Interest in
respect of the subject REMIC II Regular Interest for the related Interest
Accrual Period, reduced (to not less than zero) by the product of (i) any Net
Aggregate Prepayment Interest Shortfall for such Distribution Date, multiplied
by (ii) a fraction, the numerator of which is the amount of Uncertificated
Accrued Interest in respect of the subject REMIC II Regular Interest for the
related Interest Accrual Period, and the denominator of which is the aggregate
amount of Uncertificated Accrued Interest in respect of all the REMIC II Regular
Interests for the related Interest Accrual Period.
"Uncertificated Principal Balance" shall mean the principal balance of
any REMIC I Regular Interest or REMIC II Regular Interest outstanding as of any
date of determination. As of the Closing Date, the Uncertificated Principal
Balance of each REMIC I Regular Interest shall equal the Cut-off Date Balance of
the related Trust Mortgage Loan, and the Uncertificated Principal Balance of
each REMIC II Regular Interest shall equal the amount set forth in the
Preliminary Statement hereto as its initial Uncertificated Principal Balance. On
each Distribution Date, the Uncertificated Principal Balance of each REMIC II
Regular Interest shall be permanently reduced by all distributions of principal
deemed to have been made thereon on such Distribution Date pursuant to Section
4.01(j), and shall be further permanently reduced (subject to Section 4.05) on
such Distribution Date by all Realized Losses and Additional Trust Fund Expenses
deemed to have been allocated thereto on such Distribution Date pursuant to
Section 4.04(b). On each Distribution Date, the Uncertificated Principal Balance
of each REMIC I Regular Interest shall be permanently reduced by all
distributions of principal deemed to have been made in respect of such REMIC I
Regular Interest on such Distribution Date pursuant to Section 4.01(k), and
shall be further permanently reduced on such Distribution Date by all Realized
Losses and Additional Trust Fund Expenses deemed to have been allocated thereto
on such Distribution Date pursuant to Section 4.04(c). Notwithstanding the
foregoing, on any given Distribution Date, the Uncertificated Principal Balance
of any REMIC II Regular Interest shall be subject to increase (and, when
appropriate, shall be increased), as and to the extent provided in Section
4.05(c).
"Underwriters" shall mean Xxxxxx Brothers Inc. and UBS Securities LLC
and their respective successors in interest.
"United States Tax Person" shall mean a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any state or the District of
Columbia, or an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust (or to the extent provided in the Treasury regulations,
if the trust was in existence on August 20, 1996 and elected to be treated as a
United States person), all within the meaning of Section 7701(a) (30) of the
Code.
"United States Securities Person" shall mean any "U.S. person" as
defined in Rule 902(k) of Regulation S.
"Voting Rights" shall mean the portion of the voting rights of all of
the Certificates which is allocated to any Certificate. At all times during the
term of this Agreement, 99% of the Voting
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Rights shall be allocated among the Holders of the various Classes of the
Principal Balance Certificates in proportion to the respective Class Principal
Balances of their Certificates, and 1% of the Voting Rights shall be allocated
to the Holders of the various Classes of Interest-Only Certificates in
proportion to the respective Class Notional Amounts of their Certificates.
Voting Rights allocated to a Class of Certificateholders shall be allocated
among such Certificateholders in standard proportion to the Percentage Interests
evidenced by their respective Certificates. No Voting Rights shall be allocated
to the Class R-I, Class R-II, Class R-III and/or Class V Certificates.
"Weighted Average REMIC I Remittance Rate" shall mean, with respect to
any Interest Accrual Period, the rate per annum equal to the weighted average,
expressed as a percentage and rounded to six decimal places, of the respective
REMIC I Remittance Rates in effect for the REMIC I Regular Interests for such
Interest Accrual Period, weighted on the basis of the respective Uncertificated
Principal Balances of such REMIC I Regular Interests outstanding immediately
prior to the related Distribution Date.
"Xxxxx Fargo" shall mean Xxxxx Fargo Bank, N.A. or its successor in
interest.
"Workout Fee" shall mean the fee designated as such in, and payable to
the Special Servicer with respect to certain collections on each Corrected
Mortgage Loan pursuant to, Section 3.11(c).
"Workout Fee Rate" shall mean, with respect to each Corrected Mortgage
Loan as to which a Workout Fee is payable, 1.0%.
"Yield Maintenance Charge" shall mean the payments paid or payable, as
the context requires, as the result of a Principal Prepayment on, or other early
collection of principal of, a Mortgage Loan, which payments are not otherwise
due thereon in respect of principal or interest and have been calculated (based
on scheduled payments of interest and/or principal on such Mortgage Loan) to
compensate the holder for reinvestment losses based on the value of an interest
rate index at or near the time of prepayment. Any other prepayment premiums,
penalties and fees not so calculated will not be considered "Yield Maintenance
Charges". In the event that a Yield Maintenance Charge shall become due for any
particular Serviced Mortgage Loan, the Master Servicer shall be required to
follow the terms and provisions contained in the applicable Mortgage Note,
provided, however, that, in the event the particular Mortgage Note shall not
specify the U.S. Treasuries which shall be used in determining the discount rate
or the reinvestment yield to be applied in such calculation, the Master Servicer
shall be required to use those U.S. Treasuries which shall generate the lowest
discount rate or reinvestment yield for the purposes thereof. Accordingly, if
either no U.S. Treasury issue, or more than one U.S. Treasury issue, shall
coincide with the term over which the Yield Maintenance Charge shall be
calculated (which depending on the applicable Mortgage Note is based on the
remaining average life of the subject Serviced Mortgage Loan or the actual term
remaining through the related Stated Maturity Date or Anticipated Repayment
Date, as applicable), the Master Servicer shall use the applicable U.S. Treasury
whose reinvestment yield is the lowest, with such yield being based on the bid
price for such issue as published in The Wall Street Journal on the date that is
14 days prior to the date that the Yield Maintenance Charge shall become due and
payable (or, if such bid price is not published on that date, the next preceding
date on which such bid price is so published) and converted to a monthly
compounded nominal yield. The monthly compounded nominal yield ("MEY") is
derived from the reinvestment yield or discount rate and shall be defined as MEY
= (12 X [{(1+ "BEY"/2) ^1/6}-1]) X
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100, where BEY is defined as the U.S. Treasury Reinvestment Yield which is in
decimal form and not in percentage, and 1/6 is the exponential power to which a
portion of the equation is raised. For example, using a BEY of 5.50%, the MEY =
(12 X [{(1+ .055/2) ^ 0.16667}- 1]) X 100 where .055 is the decimal version of
the percentage 5.5% and 0.16667 is the decimal version of the exponential power.
The MEY in the above calculation is 5.44%.
"Yield Maintenance Treasury Rate" shall mean, for purposes of
calculating a Discount Rate, the yield calculated by the Master Servicer by
linear interpolation of the yields, as such yields are reported in Federal
Reserve Statistical Release H.15-Selected Interest Rates (519), under the
heading U.S. Government Securities/Treasury Constant Maturities, with respect to
the maturity dates set forth thereunder, one longer and one shorter, most nearly
approximating the maturity date (or, in the case of an ARD Trust Mortgage Loan
or any successor REO Trust Mortgage Loan with respect thereto, the Anticipated
Repayment Date) of the relevant prepaid Trust Mortgage Loan or REO Trust
Mortgage Loan. If Federal Reserve Statistical Release H.15 is no longer
published or does not indicate the information set forth above, then the Master
Servicer shall select a comparable publication or source for the purposes of
determining the Yield Maintenance Treasury Rate.
"YM Principal Balance Certificates" shall mean, collectively, the
Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J and Class K Certificates.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as
well as the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby"
and other words of similar import refer to this Agreement as a whole and
not to any particular provision; and
(vi) the terms "include" or "including" shall mean without
limitation by reason of enumeration.
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SECTION 1.03. Certain Adjustments to the Principal Distributions on
the Certificates.
(a) If any party hereto is reimbursed out of general collections on
the Mortgage Pool on deposit in the Pool Custodial Account for any unreimbursed
Advances that have been or are determined to be Nonrecoverable Advances
(together with interest accrued and payable thereon pursuant to Section 3.11(g)
or Section 4.03(d), as applicable, to the extent such interest was paid
hereunder from a source other than related Default Charges), then (for purposes
of calculating distributions on the Certificates) each such reimbursement and
payment of interest shall be deemed to have been made:
first, out of any amounts then on deposit in the Pool Custodial
Account that represent payments or other collections of principal Received
by the Trust with respect to the Mortgage Pool that, but for their
application to reimburse a Nonrecoverable Advance and/or to pay interest
thereon, would be included in the Available Distribution Amount for the
related Distribution Date;
second, out of any amounts then on deposit in the Pool Custodial
Account that represent any other payments or other collections Received by
the Trust with respect to the Mortgage Pool that, but for their application
to reimburse a Nonrecoverable Advance and/or to pay interest thereon, would
be included in the Available Distribution Amount for the related
Distribution Date; and
third, out of any other amounts then on deposit in the Pool Custodial
Account that may be available to reimburse the subject Nonrecoverable
Advance and/or to pay interest thereon.
(b) If and to the extent that any payment or other collection of
principal of any Trust Mortgage Loan or REO Trust Mortgage Loan is deemed to be
applied in accordance with clause first of Section 1.03(a) to reimburse a
Nonrecoverable Advance or to pay interest thereon, and further if and to the
extent that such payment or other collection of principal constitutes part of
the Principal Distribution Amount for any Distribution Date, then: (i) the
Adjusted Principal Distribution Amount for such Distribution Date shall exclude
such payment or other collection of principal; and (ii) for purposes of
calculating the Adjusted Principal Distribution Amount for such Distribution
Date, the amount of such payment or other collection of principal shall be
subtracted from the Principal Distribution Amount for such Distribution Date.
(c) If and to the extent that (1) any Advance is determined to be a
Nonrecoverable Advance, (2) such Advance is reimbursed or interest thereon is
paid out of general principal collections on the Mortgage Pool as contemplated
by Section 1.03(a) above and (3) the particular item for which such Advance was
originally made or such interest on such Advance, as the case may be, is
subsequently Received by the Trust (in whole or in part) out of payments or
other collections in respect of the related Trust Mortgage Loan or REO Trust
Mortgage Loan (such item or such interest on such Advance, as the case may be,
if and to the extent so collected, a "Recovered Amount"), then: (i) without
duplication of any amounts already included therein, the Adjusted Principal
Distribution Amount for the Distribution Date that corresponds to the Collection
Period in which such item or such interest on such Advance, as the case may be,
was Received by the Trust shall include such Recovered Amount; (ii) for purposes
of calculating the Adjusted Principal Distribution Amount for the Distribution
Date that corresponds to the Collection Period in which such item was Received
by the Trust, such Recovered Amount (to the extent not already included therein)
shall be added to the Principal Distribution Amount
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for such Distribution Date; and (iii) such Advance or such interest thereon, as
the case may be, to the extent of such Recovered Amount, will no longer be
considered to have been reimbursed or paid, as the case may be, out of general
principal collections on the Mortgage Pool. In addition, if and to the extent
that any Advance is determined to be a Nonrecoverable Advance, interest on such
Advance is paid out of general principal collections on the Mortgage Pool as
contemplated by Section 1.03(a) above and such interest on such Advance is
subsequently reimbursed to the Trust out of Default Charges collected on the
Trust Mortgage Loan or REO Trust Mortgage Loan as to which such Advance was
made, then: (i) the Adjusted Principal Distribution Amount for the Distribution
Date that corresponds to the Collection Period in which such Default Charges
were Received by the Trust shall include the portion of such Default Charges
that was applied to reimburse the Trust for such interest on such Advance; (ii)
for purposes of calculating the Adjusted Principal Distribution Amount for the
Distribution Date that corresponds to the Collection Period in which such
Default Charges were Received by the Trust, an amount equal to the portion of
such Default Charges that was applied to reimburse the Trust for such interest
on such Advance shall be added to the Principal Distribution Amount for such
Distribution Date; and (iii) such interest on such Advance, to the extent of
such Recovered Amount, will no longer be considered to have been paid out of
general principal collections on the Mortgage Pool.
(d) Nothing contained in this Section 1.03 is intended to limit the
ability of any party hereto that is entitled to reimbursement hereunder for any
unreimbursed Advances that have been or are determined to be Nonrecoverable
Advances (together with interest accrued and payable thereon pursuant to Section
3.11(g) or Section 4.03(d)) to collections of principal Received by the Trust
with respect to the Mortgage Pool; instead the order of priority set forth in
Section 1.03(a) is a deemed allocation only for purposes of calculating
distributions on the Certificates.
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ARTICLE II
CONVEYANCE OF TRUST MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Creation of Trust; Conveyance of Trust Mortgage Loans.
(a) It is the intention of the parties hereto that a common law trust
be established pursuant to this Agreement and that such trust be designated as
"LB-UBS Commercial Mortgage Trust 2004-C2". Xxxxx Fargo is hereby appointed, and
does hereby agree, to act as Trustee hereunder and, in such capacity, to hold
the Trust Fund in trust for the exclusive use and benefit of all present and
future Certificateholders.
The Depositor, concurrently with the execution and delivery hereof,
does hereby assign, sell, transfer, set over and otherwise convey to the Trustee
in trust, without recourse, for the benefit of the Certificateholders, all the
right, title and interest of the Depositor in, to and under (i) the Trust
Mortgage Loans, (ii) the UBS/Depositor Mortgage Loan Purchase Agreement, (iii)
the respective Co-Lender Agreements; and (iv) all other assets included or to be
included in the Trust Fund. Such assignment includes all interest and principal
received or receivable on or with respect to the Trust Mortgage Loans and due
after the Cut-off Date and, in the case of each Trust Mortgage Loan that is part
of a Loan Combination, is subject to the provisions of the related Co-Lender
Agreement. With respect to each Trust Mortgage Loan that is part of a Loan
Combination, the Trustee, on behalf of the Trust, assumes the obligations of the
holder of such Trust Mortgage Loan and the related Mortgage Note under, and
agrees to be bound by, the related Co-Lender Agreement.
The parties hereto acknowledge and agree that, notwithstanding Section
11.07, the transfer of the Trust Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by them to constitute a
sale.
(b) In connection with the Depositor's assignment pursuant to Section
2.01(a) above, the Depositor shall, in the case of each Xxxxxx Trust Mortgage
Loan, deliver to and deposit with, and the UBS Mortgage Loan Seller has
(pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement) agreed, in the
case of each UBS Trust Mortgage Loan, to deliver to and deposit with: (i) the
Trustee or a Custodian appointed thereby, on or before the Closing Date, the
Mortgage File for such Trust Mortgage Loan, with copies of the related Mortgage
Note, Mortgage(s) and reserve and cash management agreements for such Trust
Mortgage Loan to be delivered (except in the case of the GIC Office Trust
Mortgage Loan) to the Master Servicer and the Special Servicer; and (ii) the
Master Servicer, on or before the Closing Date, all unapplied Escrow Payments
and Reserve Funds in the possession of the Depositor or the UBS Mortgage Loan
Seller, as the case may be, that relate to such Trust Mortgage Loan. None of the
Trustee, any Custodian, the Master Servicer or the Special Servicer shall be
liable for any failure by a Mortgage Loan Seller or the Depositor to comply with
the document delivery requirements of the respective Mortgage Loan Purchase
Agreements and this Section 2.01(b).
After the Depositor's transfer of the Trust Mortgage Loans to the
Trustee pursuant to Section 2.01(a), the Depositor shall not take any action
inconsistent with the Trust's ownership of the Trust Mortgage Loans.
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(c) The Depositor hereby represents and warrants that it has retained
or caused to be retained, with respect to each Xxxxxx Trust Mortgage Loan (other
than the GIC Office Trust Mortgage Loan), and the UBS Mortgage Loan Seller has
covenanted in the UBS/Depositor Mortgage Loan Purchase Agreement that it shall
retain with respect to each UBS Trust Mortgage Loan, an Independent Person (each
such Person, a "Recording/Filing Agent") for purposes of promptly (and in any
event within 45 days following the later of the Closing Date and the date on
which all necessary recording or filing (as applicable) information is available
to such Recording/Filing Agent) recording or filing, as the case may be, in the
appropriate public office for real property records or UCC Financing Statements,
as appropriate, each related assignment of Mortgage and assignment of Assignment
of Leases in favor of the Trustee referred to in clause (a)(iv) of the
definition of "Mortgage File" and each related assignment of UCC Financing
Statement in favor of the Trustee referred to in clause (a)(viii) of the
definition of "Mortgage File".
Notwithstanding the foregoing, the Depositor may, in the case of a
Xxxxxx Trust Mortgage Loan (other than the GIC Office Trust Mortgage Loan), and
the UBS Mortgage Loan Seller may, in the case of a UBS Trust Mortgage Loan,
request the Trustee to record or file, as applicable, any of the assignments of
Mortgage, assignments of Assignment of Leases or assignments of UCC Financing
Statements referred to above, and in such event, the requesting party shall
cause any such unrecorded or unfiled document to be delivered to the Trustee.
The Trustee shall promptly undertake to record or file any such document upon
its receipt thereof.
The Depositor shall bear the costs of the recording and filing
referred to in the prior two paragraphs with respect to the Xxxxxx Trust
Mortgage Loans (other than the GIC Office Trust Mortgage Loan), and the
Depositor represents and warrants that the UBS/Depositor Mortgage Loan Purchase
Agreement provides that the UBS Mortgage Loan Seller shall bear the costs of the
recording and filing referred to in the prior two paragraphs with respect to the
UBS Trust Mortgage Loans. The Depositor hereby covenants as to each Xxxxxx Trust
Mortgage Loan (other than the GIC Office Trust Mortgage Loan), and the UBS
Mortgage Loan Seller has covenanted in the UBS/Depositor Mortgage Loan Purchase
Agreement as to each UBS Trust Mortgage Loan, that it will cause the applicable
Recording/Filing Agent to forward to the Trustee each related assignment of
Mortgage, assignment of Assignment of Leases and each assignment of UCC
Financing Statement in favor of the Trustee following its return by the
applicable public recording or filing office, as the case may be; provided that,
in those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases, a certified copy
of the recorded original shall be forwarded to the Trustee. Each assignment
referred to in the prior two paragraphs that is recorded by the Trustee shall
reflect that it should be returned by the public recording office to the Trustee
or its agent or to the applicable Recording/Filing Agent, following recording,
and each assignment of UCC Financing Statement referred to in the prior two
paragraphs that is filed by the Trustee shall reflect that the file copy thereof
should be returned to the Trustee or its agent following filing; provided that,
in those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases, the Trustee shall
obtain therefrom a certified copy of the recorded original. At least every 90
days after the Closing Date (or at additional times upon the request of the
Master Servicer if reasonably necessary for the ongoing administration and/or
servicing of the related Serviced Trust Mortgage Loan by the Master Servicer)
and at the expense of the Depositor (in the case of a Xxxxxx Trust Mortgage
Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage
Loan), the Trustee shall forward to the Master Servicer a copy of any of the
aforementioned assignments that have been received by the Trustee.
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If any of the aforementioned assignments relating to a UBS Trust
Mortgage Loan is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, then the Trustee shall direct the UBS Mortgage Loan
Seller (pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement) promptly
to prepare or cause the preparation of a substitute therefor or to cure such
defect, as the case may be, and to deliver to the Trustee the substitute or
corrected document. If any of the aforementioned assignments relating to a
Xxxxxx Trust Mortgage Loan (other than the GIC Office Trust Mortgage Loan) is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, then the Depositor shall promptly prepare or cause the preparation of a
substitute therefor or cure such defect, as the case may be, and shall deliver
to the Trustee the substitute or corrected document. The Trustee shall upon
receipt, whether from the UBS Mortgage Loan Seller or the Depositor, cause the
same to be duly recorded or filed, as appropriate.
(d) In connection with the Depositor's assignment pursuant to Section
2.01(a) above, the Depositor shall, in the case of each Xxxxxx Trust Mortgage
Loan (other than the GIC Office Trust Mortgage Loan), deliver to and deposit
with, and the UBS Mortgage Loan Seller has (pursuant to the UBS/Depositor
Mortgage Loan Purchase Agreement) agreed, in the case of each UBS Trust Mortgage
Loan, to deliver to and deposit with, the Master Servicer, upon written request
of the Master Servicer, such other relevant documents and records (other than
any document in that constitutes part of the Mortgage File for such Trust
Mortgage Loan, which shall be delivered pursuant to or as contemplated by
Section 2.01(b) above) that: (A) relate to the administration or servicing of
such Trust Mortgage Loan, (B) are reasonably necessary for the ongoing
administration and/or servicing of such Trust Mortgage Loan by the Master
Servicer in connection with its duties under this Agreement, and (C) are in the
possession or under the control of the UBS Mortgage Loan Seller or the
Depositor, as applicable; provided that, to the extent the Depositor or the UBS
Mortgage Loan Seller, as applicable, has not received a written request for any
such document or record (other than any document in that constitutes part of the
Mortgage File for such Trust Mortgage Loan) prior to the first anniversary of
the Closing Date, the Depositor or the UBS Mortgage Loan Seller, as the case may
be, shall have no obligation to provide such document; and provided, further,
that neither the Depositor nor the UBS Mortgage Loan Seller shall be required to
deliver any draft documents, privileged or other communications, credit
underwriting or due diligence analyses, credit committee briefs or memoranda or
other internal approval documents or data or internal worksheets, memoranda,
communications or evaluations. The Master Servicer shall, with reasonable
specificity, on or as soon as reasonably practicable following the Closing Date,
request all such documents and records. The Master Servicer shall hold all such
documents and records received by it (as well as any funds received by it
pursuant to Section 2.01(b)) on behalf of the Trustee in trust for the benefit
of the Certificateholders (and, insofar as they also relate to any Serviced
Non-Trust Mortgage Loan, on behalf of and for the benefit of the related
Serviced Non-Trust Mortgage Loan Noteholder).
Notwithstanding the foregoing, in connection with the Depositor's
assignment pursuant to Section 2.01(a) above, the Depositor shall, in the case
of each Xxxxxx Trust Mortgage Loan (other than the GIC Office Trust Mortgage
Loan), use reasonable efforts deliver to and deposit with, and the UBS Mortgage
Loan Seller has (pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement)
agreed, in the case of each UBS Trust Mortgage Loan, to use reasonable efforts
to deliver to and deposit with, the Master Servicer, in each case as soon as
reasonably practicable following the Closing Date (but in any event not later
than 45 days following the Closing Date and without need of a written request
within such initial 45-day period (except as provided in the following two
provisos)), the Mortgage Loan Origination Documents that relate to such Trust
Mortgage Loan; provided that, the Master Servicer
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shall, promptly following delivery by the Depositor or the UBS Mortgage Loan
Seller, as applicable, of the Mortgage Loan Origination Documents that relate to
each Trust Mortgage Loan, confirm the delivery and completeness thereof and
submit a written request for any such document or record that constitutes a
Mortgage Loan Origination Document and has not been delivered as provided above
in this paragraph; provided, further, that to the extent the Depositor or the
UBS Mortgage Loan Seller, as applicable, has not received a written request for
any such document or record that constitutes a Mortgage Loan Origination
Document (other than any document in that constitutes part of the Mortgage File
for such Trust Mortgage Loan) prior to the first anniversary of the Closing
Date, the Depositor or the UBS Mortgage Loan Seller, as the case may be, shall
have no obligation to provide such document.
(e) In connection with the obligations of the Master Servicer under
Sections 3.01(i) and 3.19(c), with regard to each Serviced Trust Mortgage Loan
that is secured by the interests of the related Mortgagor in a hospitality
property and each Serviced Trust Mortgage Loan that has a related letter of
credit, the Depositor (with respect to each such Serviced Trust Mortgage Loan
that is a Xxxxxx Trust Mortgage Loan) shall, and the UBS Mortgage Loan Seller
(with respect to each such Serviced Trust Mortgage Loan that is a UBS Trust
Mortgage Loan) will be obligated under the UBS/Depositor Mortgage Loan Purchase
Agreement to, deliver to and deposit with the Master Servicer, on or before the
Closing Date, any related franchise agreement and franchise comfort letter and
the original of such letter of credit.
(f) It is not intended that this Agreement create a partnership or a
joint-stock association.
SECTION 2.02. Acceptance of Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
hereby accepts receipt, directly or through a Custodian on its behalf, of (i)
the Trust Mortgage Loans and all documents delivered to it that constitute
portions of the related Mortgage Files and (ii) all other assets delivered to it
and included in the Trust Fund, in good faith and without notice of any adverse
claim, and declares that it or a Custodian on its behalf holds and will hold
such documents and any other documents subsequently received by it that
constitute portions of the Mortgage Files, and that it holds and will hold the
Trust Mortgage Loans and such other assets, together with any other assets
subsequently delivered to it that are to be included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
To the extent that the Mortgage File for any Serviced Combination Trust Mortgage
Loan relates to a Serviced Non-Trust Mortgage Loan, the Trustee shall also hold
such Mortgage File in trust for the use and benefit of the related Serviced
Non-Trust Mortgage Loan Noteholder. In connection with the foregoing, the
Trustee hereby certifies to each of the other parties hereto, each Mortgage Loan
Seller and each Underwriter that, as to each Trust Mortgage Loan, (i) the
Specially Designated Mortgage Loan Documents are in its possession or the
possession of a Custodian on its behalf, and (ii) the original Mortgage Note
(or, if accompanied by a lost note affidavit, the copy of such Mortgage Note)
received by it or any Custodian with respect to such Trust Mortgage Loan has
been reviewed by it or by such Custodian on its behalf and (A) appears regular
on its face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appears to have been executed
(where appropriate) and (C) purports to relate to such Trust Mortgage Loan.
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(b) On or about the 45th day following the Closing Date (and, if any
exceptions are noted, again on or about the 90th day following the Closing Date
and monthly thereafter until the earliest of (i) the second anniversary of the
Closing Date, (ii) the day on which all material exceptions have been removed
and (iii) the day on which the Depositor has repurchased the last affected Trust
Mortgage Loan), the Trustee or a Custodian on its behalf shall review the
documents delivered to it or such Custodian with respect to each Mortgage Loan,
and the Trustee shall (or shall cause a Custodian on its behalf to), subject to
Sections 2.01, 2.02(c) and 2.02(d), certify in writing (substantially in the
form of Exhibit C hereto) to each of the other parties hereto, each Mortgage
Loan Seller and each Underwriter (and, in the case of a Serviced Non-Trust
Mortgage Loan, the related Serviced Non-Trust Mortgage Loan Noteholder) that, as
to each Mortgage Loan then subject to this Agreement (except as specifically
identified in any exception report annexed to such certification): (i) all
documents specified in clauses (a)(i) through (a)(v), (a)(vii), (a)(viii)
(without regard to the second parenthetical in such clause (a)(viii)) and
(a)(ix) of the definition of "Mortgage File" or, in the case of the GIC Office
Mortgage Loan, in clauses (b)(i) through (b)(iii) of the definition of "Mortgage
File", are in its possession or the possession of a Custodian on its behalf;
(ii) the recordation/filing contemplated by Section 2.01(c) (except in the case
of the GIC Office Trust Mortgage Loan) has been completed (based solely on
receipt by the Trustee or by a Custodian on its behalf of the particular
recorded/filed documents); (iii) all documents received by it or any Custodian
with respect to such Mortgage Loan have been reviewed by it or by such Custodian
on its behalf and (A) appear regular on their face (handwritten additions,
changes or corrections shall not constitute irregularities if initialed by the
Mortgagor), (B) appear to have been executed (where appropriate) and (C) purport
to relate to such Mortgage Loan; and (iv) based on the examinations referred to
in Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing
documents, the information set forth in the Trust Mortgage Loan Schedule with
respect to the items specified in clauses (v) and (vi)(B) of the definition of
"Trust Mortgage Loan Schedule" accurately reflects the information set forth in
the Mortgage File. If the Trustee's obligation to deliver the certifications
contemplated in this subsection terminates because two years have elapsed since
the Closing Date, the Trustee shall (or shall cause a Custodian on its behalf
to) deliver a comparable certification, upon request, to any party hereto, any
Serviced Non-Trust Mortgage Loan Noteholder and/or any Underwriter.
(c) None of the Trustee, the Master Servicer, the Special Servicer or
any Custodian is under any duty or obligation to inspect, review or examine any
of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Furthermore, none of the Trustee, the Master Servicer, the Special
Servicer or any Custodian shall have any responsibility for determining whether
the text of any assignment or endorsement is in proper or recordable form,
whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(d) It is understood that the scope of the Trustee's review of the
Mortgage Files is limited solely to confirming that the documents specified in
clauses (a)(i) through (a)(v), (a)(vii), (a)(viii) and (a)(ix) (or, in the case
of the GIC Office Trust Mortgage Loan, clauses (b)(i) through (b)(iii)) of the
definition of "Mortgage File" have been received and such additional information
as will be necessary for delivering the certifications required by Sections
2.02(a) and (b) above.
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SECTION 2.03. Repurchase of Trust Mortgage Loans for Document Defects
and Breaches of Representations and Warranties.
(a) If any party hereto discovers that any document constituting a
part of a Mortgage File has not been properly executed, is missing, contains
information that does not conform in any material respect with the corresponding
information set forth in the Trust Mortgage Loan Schedule, or does not appear to
be regular on its face (each, a "Document Defect"), or discovers or receives
notice of a breach of any representation or warranty of the UBS Mortgage Loan
Seller made pursuant to Section 3(b) of the UBS/Depositor Mortgage Loan Purchase
Agreement with respect to any UBS Trust Mortgage Loan (a "Breach"), or discovers
or receives notice of a breach of any representation or warranty of the
Depositor set forth in Section 2.04(b) with respect to any Xxxxxx Trust Mortgage
Loan (also, a "Breach"), such party shall give prompt written notice thereof to
each Rating Agency, the related Mortgage Loan Seller, the other parties hereto
and the Controlling Class Representative. If any such Document Defect or Breach
with respect to any Trust Mortgage Loan materially and adversely affects the
interests of the Certificateholders therein (which material and adverse effect
shall be determined as of the date of such notice with respect to any Document
Defect or Breach for which the Depositor (in the case of a Xxxxxx Trust Mortgage
Loan) or the UBS Mortgage Loan Seller or UBS Principal Finance LLC (in the case
of a UBS Trust Mortgage Loan) receives notice more than 24 months from the date
hereof), then such Document Defect shall constitute a "Material Document Defect"
or such Breach shall constitute a "Material Breach", as the case may be.
Notwithstanding anything herein to the contrary, the failure by the Depositor
(in the case of a Xxxxxx Trust Mortgage Loan) and/or the UBS Mortgage Loan
Seller (in the case of a UBS Trust Mortgage Loan) to deliver, to the extent
required, any item set forth under clause (a)(viii) of the definition of
"Mortgage File", with respect to a Trust Mortgage Loan secured by any property
other than a hospitality property, can never constitute a Material Document
Defect for any purpose under this Agreement or under the UBS/Depositor Mortgage
Loan Purchase Agreement.
Promptly upon becoming aware of any such Material Document Defect or
Material Breach with respect to a UBS Trust Mortgage Loan, the Trustee shall
deliver a Seller/Depositor Notification to the UBS Mortgage Loan Seller, the
Master Servicer and the Special Servicer and shall require the UBS Mortgage Loan
Seller, within the time period and subject to the conditions provided for in the
UBS/Depositor Mortgage Loan Purchase Agreement, to cure such Material Document
Defect or Material Breach, as the case may be, or repurchase the affected Trust
Mortgage Loan or any related REO Property (or, in the case of an REO Property
related to a Loan Combination, the Trust's interest therein) at the applicable
Purchase Price by wire transfer of immediately available funds to the Pool
Custodial Account. Promptly upon becoming aware of any such Material Document
Defect or Material Breach with respect to a Xxxxxx Trust Mortgage Loan, the
Trustee shall deliver a Seller/Depositor Notification to the Depositor, the
Master Servicer and the Special Servicer, and the Depositor shall, not later
than 90 days from the earlier of (i) the date on which the Depositor and the
Trustee have agreed upon the existence of such Material Document Defect or
Material Breach, as the case may be, and (ii) the 120th day following the
Depositor's receipt of such Seller/Depositor Notification regarding such
Material Document Defect or Material Breach, as the case may be (or, in the case
of a Material Document Defect or Material Breach relating to a Xxxxxx Trust
Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC
Provisions, not later than 90 days following any party discovering such Material
Document Defect or Material Breach) (any such 90-day period (with respect to a
Xxxxxx Trust Mortgage Loan), and any "Initial Resolution Period", as defined in
the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust
Mortgage Loan), as
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applicable, are each referred to herein as the "Initial Resolution Period"),
cure the same in all material respects (which cure shall include payment of
losses and any Additional Trust Fund Expenses associated therewith) or, if such
Material Document Defect or Material Breach, as the case may be, cannot be cured
within the Initial Resolution Period, repurchase the affected Xxxxxx Trust
Mortgage Loan or any related REO Property (or, in the case of an REO Property
related to a Loan Combination, the Trust's interest therein) at the applicable
Purchase Price by wire transfer of immediately available funds to the Pool
Custodial Account; provided, however, that if (i) such Material Document Defect
or Material Breach is capable of being cured but not within the Initial
Resolution Period, (ii) such Material Document Defect or Material Breach is not
related to any Xxxxxx Trust Mortgage Loan's not being a "qualified mortgage"
within the meaning of the REMIC Provisions and (iii) the Depositor has commenced
and is diligently proceeding with the cure of such Material Document Defect or
Material Breach within the Initial Resolution Period, then the Depositor shall
have an additional period equal to the applicable Resolution Extension Period to
complete such cure or, in the event of a failure to so cure, to complete such
repurchase (it being understood and agreed that, in connection with the
Depositor's receiving such extension of time equal to the applicable Resolution
Extension Period, the Depositor shall deliver an Officer's Certificate to the
Trustee setting forth the reasons such Material Document Defect or Material
Breach is not capable of being cured within the Initial Resolution Period and
what actions the Depositor is pursuing in connection with the cure thereof and
stating that the Depositor anticipates that such Material Document Defect or
Material Breach will be cured within the applicable Resolution Extension
Period); and provided, further, that, if any such Material Document Defect is
still not cured after the Initial Resolution Period and any such Resolution
Extension Period solely due to the failure of the Depositor to have received a
recorded document, then the Depositor shall be entitled to continue to defer its
cure and repurchase obligations in respect of such Document Defect so long as
the Depositor certifies to the Trustee every six months thereafter that the
Document Defect is still in effect solely because of its failure to have
received the recorded document and that the Depositor is diligently pursuing the
cure of such defect (specifying the actions being taken).
If, during the period of deferral by the Depositor of its cure and
repurchase obligations as contemplated by the last proviso of the preceding
paragraph, or during any comparable deferral by the UBS Mortgage Loan Seller of
its cure and repurchase obligations as provided in Section 5 of the
UBS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust
Mortgage Loan that is the subject of the Material Document Defect either becomes
a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or
actual assumption of the obligations of the related Mortgagor under such Trust
Mortgage Loan, then (i) any party to this Agreement that becomes aware of such
event shall deliver a Seller/Depositor Notification to such effect (unless a
Seller/Depositor Notification with respect to such event has already been
delivered by another party) to the Master Servicer, the Special Servicer, the
Trustee, the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) and the UBS
Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan), and (ii) the
Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor
Notification to the Master Servicer, the Special Servicer, the Depositor (in the
case of a Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in the
case of a UBS Trust Mortgage Loan), providing notice of such event and directing
the Depositor or the UBS Mortgage Loan Seller, as applicable, to cure the
subject Material Document Defect within 15 days of receipt of such
Seller/Depositor Notification. If, upon the expiration of such 15-day period,
the Depositor or the UBS Mortgage Loan Seller, as applicable, has failed to cure
the subject Material Document Defect, the Master Servicer or the Special
Servicer, as applicable, shall be entitled (but not obligated) to perform the
obligations of the Depositor or the UBS Mortgage Loan Seller, as applicable,
with respect to curing the subject Material Document Defect; and, upon electing
to
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perform such obligations, the Master Servicer or the Special Servicer, as
applicable, shall promptly deliver a Seller/Depositor Notification to such
effect. In connection with the preceding sentence, the Depositor will, and the
UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan
Purchase Agreement to, pay all reasonable costs and expenses in connection with
the applicable servicer's effecting such cure.
(b) In connection with the events in Section 2.03(a), the Trustee
shall prepare and deliver, in each case promptly upon becoming aware of such
event, to the Master Servicer, the Special Servicer and either the Depositor
(with respect to a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller
(with respect to a UBS Trust Mortgage Loan), as applicable, a Seller/Depositor
Notification identifying and describing the circumstances identified in the
definition of "Seller/Depositor Notification" (unless, in the case of an event
described in clauses (iii), (iv) and/or (vi), as applicable, of the definition
of "Seller/Depositor Notification", a Seller/Depositor Notification with respect
to such event has already been delivered by the Master Servicer or the Special
Servicer). Further, in connection with the events in Section 2.03(a), the Master
Servicer or the Special Servicer, as applicable, shall prepare and deliver, in
each case promptly upon becoming aware of such event, to the other such
servicer, the Trustee and either the Depositor (with respect to a Xxxxxx Trust
Mortgage Loan) or the UBS Mortgage Loan Seller (with respect to a UBS Trust
Mortgage Loan), as applicable, a Seller/Depositor Notification identifying and
describing the circumstances identified in clauses (iii), (iv) and/or (vi), as
applicable, of the definition of "Seller/Depositor Notification" (unless such
notification has already been delivered). A copy of each such Seller/Depositor
Notification shall also be delivered to the Controlling Class Representative
and, in the case of an event described in clauses (v) and/or (vii) of the
definition of "Seller/Depositor Notification", to either internal counsel to the
Depositor (with respect to a Xxxxxx Trust Mortgage Loan) or counsel to the UBS
Mortgage Loan Seller (with respect to a UBS Trust Mortgage Loan), as applicable,
to the extent the Trustee, Master Servicer or Special Servicer, as applicable,
knows the identity of such person.
(c) If one or more (but not all) of the Trust Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased by the Depositor
or the UBS Mortgage Loan Seller as contemplated by this Section 2.03, then,
prior to the subject repurchase, the Depositor or the UBS Mortgage Loan Seller,
as the case may be, or its designee shall use its reasonable efforts, subject to
the terms of the related Trust Mortgage Loan(s), to prepare and, to the extent
necessary and appropriate, have executed by the related Mortgagor and record,
such documentation as may be necessary to terminate the cross-collateralization
between the Trust Mortgage Loan(s) in such Cross-Collateralized Group that are
to be repurchased, on the one hand, and the remaining Trust Mortgage Loan(s)
therein, on the other hand, such that those two groups of Trust Mortgage Loans
are each secured only by the Mortgaged Properties identified in the Trust
Mortgage Loan Schedule as directly corresponding thereto; provided that no such
termination shall be effected unless and until (i) the Controlling Class
Representative, if one is then acting, has consented (which consent shall not be
unreasonably withheld and shall be deemed to have been given if no written
objection is received by the Depositor or the UBS Mortgage Loan Seller, as the
case may be, within ten (10) Business Days of the Controlling Class
Representative's receipt of a written request for such consent) and (ii) the
Trustee has received from the Depositor or the UBS Mortgage Loan Seller, as the
case may be, (A) an Opinion of Counsel to the effect that such termination would
not cause an Adverse REMIC Event to occur with respect to any REMIC Pool or an
Adverse Grantor Trust Event to occur with respect to Grantor Trust V and (B)
written confirmation from each Rating Agency that such termination would not
cause an Adverse Rating Event to occur with respect to any Class of
Certificates; and provided, further, that the Depositor, in the case of
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Xxxxxx Trust Mortgage Loans, or the UBS Mortgage Loan Seller, in the case of UBS
Trust Mortgage Loans, may, at its option, purchase the entire subject
Cross-Collateralized Group in lieu of effecting a termination of the
cross-collateralization. All costs and expenses incurred by the Trustee or any
Person on its behalf pursuant to this paragraph shall be included in the
calculation of the Purchase Price for the Trust Mortgage Loan(s) to be
repurchased. If the cross-collateralization of any Cross-Collateralized Group is
not or cannot be terminated as contemplated by this paragraph, then, for
purposes of (i) determining the materiality of any Breach or Defect, as the case
may be, and (ii) the application of remedies, such Cross-Collateralized Group
shall be treated as a single Trust Mortgage Loan.
(d) In the event the Depositor is obligated to repurchase any Xxxxxx
Trust Mortgage Loan pursuant to this Section 2.03, and/or the UBS Mortgage Loan
Seller is obligated to repurchase any UBS Trust Mortgage Loan pursuant to the
UBS/Depositor Mortgage Loan Purchase Agreement, such obligation shall extend to
any REO Trust Mortgage Loan as to which (i) the subject Material Breach existed
as to the subject predecessor Trust Mortgage Loan prior to the date the related
Mortgaged Property became an REO Property or within 90 days thereafter, and (ii)
the party having the repurchase obligation had received, no later than 90 days
following the date on which the related Mortgaged Property became an REO
Property, a Seller/Depositor Notification from the Trustee regarding the
occurrence of the applicable Material Breach and directing such party to
repurchase the subject Trust Mortgage Loan.
(e) Notwithstanding the foregoing, if there exists a Breach of that
portion of the representation or warranty on the part of the Depositor set forth
in, or made pursuant to, Section 2.04(b)(xxvi) or Section 2.04(b)(xlviii), or on
the part of the UBS Mortgage Loan Seller set forth in, or made pursuant to,
paragraph (xxvi) or paragraph (xlviii) of Exhibit B to the UBS/Depositor
Mortgage Loan Purchase Agreement, in each case specifically relating to whether
or not the Mortgage Loan documents or any particular Mortgage Loan document for
any Mortgage Loan requires the related Mortgagor to bear the reasonable costs
and expenses associated with the subject matter of such representation or
warranty, as set forth in such representation or warranty, then the Master
Servicer shall (and the Special Servicer may) direct the Depositor (in the case
of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of
a UBS Trust Mortgage Loan) in writing to wire transfer to the Pool Custodial
Account, within 90 days of such party's receipt of such direction, the amount of
any such reasonable costs and expenses incurred by the Trust that (i) are due
from the Mortgagor, (ii) otherwise would have been required to be paid by the
Mortgagor if such representation or warranty with respect to such costs and
expenses had in fact been true, as set forth in the related representation or
warranty, (iii) have not been paid by the Mortgagor, (iv) are the basis of such
Breach and (v) constitute "Covered Costs". Upon payment of such costs, the
Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan
Seller (in the case of a UBS Trust Mortgage Loan) shall be deemed to have cured
such Breach in all respects. Provided that such payment is made, this paragraph
describes the sole remedy available to the Certificateholders and the Trustee on
their behalf regarding any such Breach, regardless of whether it constitutes a
Material Breach, and neither the Depositor (in the case of a Xxxxxx Trust
Mortgage Loan) nor the UBS Mortgage Loan Seller (in the case of a UBS Trust
Mortgage Loan) shall be obligated to otherwise cure such Breach or repurchase
the affected Trust Mortgage Loan under any circumstances. Amounts deposited in
the Pool Custodial Account pursuant to this paragraph shall constitute
"Liquidation Proceeds" for all purposes of this Agreement (other than Section
3.11(c)).
(f) In connection with any repurchase of a Trust Mortgage Loan
pursuant to or otherwise as contemplated by this Section 2.03, the Trustee, the
Custodian, the Master Servicer and the
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Special Servicer shall each tender to the repurchasing entity, upon delivery to
each of them of a receipt executed by the repurchasing entity, all portions of
the Mortgage File and other documents pertaining to such Trust Mortgage Loan
possessed by it, and each document that constitutes a part of the Mortgage File
shall be endorsed or assigned to the extent necessary or appropriate to the
repurchasing entity or its designee in the same manner, but only if the
respective documents have been previously assigned or endorsed to the Trustee,
and pursuant to appropriate forms of assignment, substantially similar to the
manner and forms pursuant to which such documents were previously assigned to
the Trustee; provided that such tender by the Trustee or by a Custodian on its
behalf shall be conditioned upon its receipt from the Master Servicer of a
Request for Release accompanied by a certification of a Servicing Officer to the
effect that all amounts received or to be received in connection with such
repurchase which are required to be deposited in the applicable Custodial
Account pursuant to Section 3.04(a), 3.04A(a), 3.04B(a), 3.04C(a) or 3.04D(a),
as applicable, have been deposited. The Master Servicer shall, and is hereby
authorized and empowered by the Trustee to, prepare, execute and deliver in its
own name, on behalf of the Certificateholders and the Trustee or any of them,
the endorsements and assignments contemplated by this Section 2.03(f), and such
other instruments as may be necessary or appropriate to transfer title to an REO
Property or any interest therein in connection with the repurchase of an REO
Trust Mortgage Loan and the Trustee shall execute and deliver any powers of
attorney necessary to permit the Master Servicer to do so; provided, however,
that the Trustee shall not be held liable for any misuse of any such power of
attorney by the Master Servicer.
(g) The UBS/Depositor Mortgage Loan Purchase Agreement provides the
sole remedies available to the Certificateholders, or the Trustee on behalf of
the Certificateholders, respecting any Document Defect or Breach with respect to
any UBS Trust Mortgage Loan. This Section 2.03 provides the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach with respect to any
Xxxxxx Trust Mortgage Loan.
SECTION 2.04. Representations, Warranties and Covenants of the
Depositor.
(a) The Depositor hereby represents, warrants and covenants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
any Fiscal Agent, the Master Servicer and the Special Servicer, as of the
Closing Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, will not violate the Depositor's certificate of
incorporation or by-laws or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
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(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Depositor's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Depositor to
perform its obligations under this Agreement or the financial condition of
the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer or
similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans
to the Trustee with any intent to hinder, delay or defraud its present or
future creditors.
(viii) The Depositor has been solvent at all relevant times prior
to, and will not be rendered insolvent by, its transfer of the Trust
Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage
Loans to the Trustee pursuant to Section 2.01(a), the value of the
Depositor's assets, either taken at their present fair saleable value or at
fair valuation, will exceed the amount of the Depositor's debts and
obligations, including contingent and unliquidated debts and obligations of
the Depositor, and the Depositor will not be left with unreasonably small
assets or capital with which to engage in and conduct its business.
(x) The Depositor does not intend to, and does not believe that
it will, incur debts or obligations beyond its ability to pay such debts
and obligations as they mature.
(xi) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's good faith and reasonable judgment,
is likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(xiii) Except for any actions that are the express responsibility
of another party hereunder or under the Mortgage Loan Purchase Agreements,
and further except for actions that
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the Depositor is expressly permitted to complete subsequent to the Closing
Date, the Depositor has taken all actions required under applicable law to
effectuate the transfer of the Trust Mortgage Loans by the Depositor to the
Trustee.
(xiv) Immediately prior to the transfer of the UBS Trust Mortgage
Loans to the Trust pursuant to this Agreement (and assuming that the UBS
Mortgage Loan Seller transferred to the Depositor good and marketable title
to each UBS Trust Mortgage Loan, free and clear of all liens, claims,
encumbrances and other interests), (A) the Depositor had good and
marketable title to, and was the sole owner and holder of, each UBS Trust
Mortgage Loan; and (B) the Depositor has full right and authority to sell,
assign and transfer the UBS Trust Mortgage Loans, exclusive of the
servicing rights pertaining thereto.
(b) The Depositor hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, with respect to each
Xxxxxx Trust Mortgage Loan only, as of the Closing Date or such other date
specified in the particular representation and warranty, subject to the
exceptions set forth on Schedule II hereto, as follows (the headings set forth
in this Section 2.04(b) with respect to each representation and warranty being
for convenience of reference only and in no way limiting, expanding or otherwise
affecting the scope or subject matter thereof):
(i) Trust Mortgage Loan Schedule. The information pertaining to
such Mortgage Loan set forth in the Trust Mortgage Loan Schedule was true
and correct in all material respects as of its Due Date in March 2004.
(ii) Legal Compliance. If such Mortgage Loan was originated by a
Xxxxxx Mortgage Loan Seller or another Affiliate of the Depositor, then, as
of the date of its origination, such Mortgage Loan complied in all material
respects with, or was exempt from, all requirements of federal, state or
local law relating to the origination of such Mortgage Loan; and, if such
Mortgage Loan was not originated by a Xxxxxx Mortgage Loan Seller or
another Affiliate of the Depositor, then, to the Depositor's actual
knowledge, after having performed the type of due diligence customarily
performed by prudent institutional commercial and multifamily mortgage
lenders, as of the date of its origination, such Mortgage Loan complied in
all material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination of such Mortgage
Loan.
(iii) Ownership of Xxxxxx Trust Mortgage Loan. The Depositor owns
such Mortgage Loan, has good title thereto, has full right, power and
authority to sell, assign and transfer such Mortgage Loan and is
transferring such Mortgage Loan free and clear of any and all liens,
pledges, charges or security interests of any nature encumbering such
Mortgage Loan, exclusive of the servicing rights pertaining thereto; no
provision of the Mortgage Note, Mortgage(s) or other loan documents
relating to such Mortgage Loan prohibits or restricts the Depositor's right
to assign or transfer such Mortgage Loan to the Trustee (except in the case
of a Loan Combination, which may, pursuant to the related Co-Lender
Agreement, require notice to one or more rating agencies or another lender
which, if required, has already been provided); no governmental or
regulatory approval or consent is required for the sale of such Mortgage
Loan by the Depositor; and the Depositor has validly conveyed to the
Trustee a legal and beneficial interest in and to such Mortgage Loan free
and clear of any lien, claim or encumbrance of any nature.
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(iv) No Holdback. The proceeds of such Mortgage Loan have been
fully disbursed (except in those cases where the full amount of such
Mortgage Loan has been disbursed but a portion thereof is being held in
escrow or reserve accounts to be released pending the satisfaction of
certain conditions relating to leasing, repairs or other matters with
respect to the related Mortgaged Property) and there is no requirement for
future advances thereunder.
(v) Loan Document Status. Each of the related Mortgage Note,
Mortgage(s), Assignment(s) of Leases, if separate from the related
Mortgage, and other agreements executed in favor of the lender in
connection therewith is the legal, valid and binding obligation of the
maker thereof (subject to the non-recourse provisions therein and any state
anti-deficiency legislation), enforceable in accordance with its terms,
except that (A) such enforcement may be limited by (1) bankruptcy,
insolvency, receivership, reorganization, liquidation, voidable preference,
fraudulent conveyance and transfer, moratorium and/or other similar laws
affecting the enforcement of creditors' rights generally, and (2) general
principles of equity (regardless of whether such enforcement is considered
in a proceeding in equity or at law), and (B) certain provisions in the
subject agreement or instrument may be further limited or rendered
unenforceable by applicable law, but subject to the limitations set forth
in the foregoing clause (A), such limitations will not render that subject
agreement or instrument invalid as a whole or substantially interfere with
the mortgagee's realization of the principal benefits and/or security
provided by the subject agreement or instrument. Such Mortgage Loan is
non-recourse to the Mortgagor or any other Person except to the extent
provided in certain nonrecourse carveouts and/or in any applicable
guarantees. A natural person as individual guarantor has agreed, in effect,
to be jointly and severally liable with the related Mortgagor, for all
liabilities, costs, losses, damages or expenses suffered or incurred by the
mortgagee under such Mortgage Loan by reason of or in connection with and
to the extent of (A) any intentional fraud or material intentional
misrepresentation by the related Mortgagor, (B) any breach on the part of
the related Mortgagor of any environmental representations warranties,
covenants or indemnity contained in the related Mortgage Loan documents,
(C) misapplication or misappropriation of rents (received after an event of
default), insurance proceeds or condemnation awards, and (D) the filing of
a voluntary bankruptcy or insolvency proceeding by the related Mortgagor;
provided that, in the case of any breach described in clause (B) of this
paragraph, such entity (or individual) may instead cover through
environmental insurance liabilities, costs, losses, damages, expenses and
claims resulting from a breach of the obligations and indemnities of the
related Mortgagor under the related Mortgage Loan documents relating to
hazardous or toxic substances, radon or compliance with environmental laws.
(vi) No Right of Rescission. Subject to the limitations and
exceptions as to enforceability set forth in paragraph (b)(v) above, there
is no valid offset, defense, counterclaim or right to rescission, abatement
or diminution with respect to any of the related Mortgage Note, Mortgage(s)
or other agreements executed in connection with such Mortgage Loan; and, as
of the Closing Date, to the actual knowledge of the Depositor, no such
claim has been asserted.
(vii) Assignments. The assignment of the related Mortgage(s) and
Assignment(s) of Leases to the Trustee (or, in the case of the GIC Office
Trust Mortgage Loan, to the GIC Office Trustee) constitutes the legal,
valid, binding and, subject to the limitations and exceptions as to
enforceability set forth in paragraph (b)(v) above, enforceable assignment
of such documents (provided that the unenforceability of any such
assignment based on bankruptcy,
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insolvency, receivership, reorganization, liquidation, moratorium and/or
other similar laws affecting the enforcement of creditors' rights generally
or based on general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) shall be a
breach of this representation and warranty only upon the declaration by a
court with jurisdiction in the matter that such assignment is to be
unenforceable on such basis).
(viii) First Lien. Each related Mortgage is a valid and, subject
to the limitations and exceptions in paragraph (b)(v) above, enforceable
first lien on the related Mortgaged Property including all improvements
thereon and appurtenances and rights related thereto, which Mortgaged
Property is free and clear of all encumbrances and liens having priority
over or on a parity with the first lien of such Mortgage, except for the
following (collectively, the "Permitted Encumbrances"): (A) the lien for
real estate taxes, water charges, sewer rents and assessments not yet due
and payable; (B) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record or that are omitted
as exceptions in the related lender's title insurance policy (or, if not
yet issued, omitted as exceptions in a fully binding pro forma title policy
or title policy commitment); (C) the rights of tenants (as tenants only)
under leases (including subleases) pertaining to the related Mortgaged
Property; (D) condominium declarations of record and identified in the
related lender's title insurance policy (or, if not yet issued, identified
in a pro forma title policy or title policy commitment); and (E) if such
Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of
the Mortgage for another Mortgage Loan contained in the same
Cross-Collateralized Group; provided that, in the case of a Xxxxxx Trust
Mortgage Loan that is part of a Loan Combination, such Mortgage also
secures the related Non-Trust Mortgage Loan(s). With respect to such
Mortgage Loan, such Permitted Encumbrances do not, individually or in the
aggregate, materially and adversely interfere with the benefits of the
security intended to be provided by the related Mortgage, the current
principal use or operation of the related Mortgaged Property or the ability
of the related Mortgaged Property to generate sufficient cashflow to enable
the related Mortgagor to timely pay in full the principal and interest on
the related Mortgage Note (other than a Balloon Payment, which would
require a refinancing). If the related Mortgaged Property is operated as a
nursing facility or a hospitality property, the related Mortgage, together
with any security agreement, chattel mortgage or similar agreement and UCC
financing statement, if any, establishes and creates a first priority,
perfected security interest (subject only to any prior purchase money
security interest, revolving credit lines and any personal property
leases), to the extent such security interest can be perfected by the
recordation of a Mortgage or the filing of a UCC financing statement, in
all material personal property owned by the Mortgagor that is used in, and
is reasonably necessary to, the operation of the related Mortgaged Property
as presently operated by the Mortgagor, and that is located on the related
Mortgaged Property, which personal property includes, in the case of
Mortgaged Properties operated by the related Mortgagor as a nursing
facility or hospitality property, all furniture, fixtures, equipment and
other personal property located at the subject Mortgaged Property that are
owned by the related Mortgagor and reasonably necessary or material to the
operation of the subject Mortgaged Property. In the case of any Xxxxxx
Trust Mortgage Loan secured by a hotel, the related loan documents contain
such provisions as are necessary and UCC financing statements have been
filed as necessary, in each case, to perfect a valid first priority
security interest, to the extent such security interest can be perfected by
the inclusion of such provisions and the filing of a UCC financing
statement, in the Mortgagor's right to receive related hotel room revenues
with respect to such Mortgaged Property.
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(ix) Taxes and Assessments. All taxes, governmental assessments,
water charges, sewer rents or similar governmental charges (which, in all
such cases, were directly related to the related Mortgaged Property and
could constitute liens on the related Mortgaged Property prior to the lien
of the related Mortgage), together with all ground rents, that prior to the
related Due Date in March 2004 became due and payable in respect of, and
materially affect, any related Mortgaged Property have been paid or are not
yet delinquent, and the Depositor knows of no unpaid tax, assessment,
ground rent, water charges or sewer rent, which, in all such cases, were
directly related to the subject Mortgaged Property and could constitute
liens on the subject Mortgaged Property prior to the lien of the related
Mortgage, that prior to the Closing Date became due and delinquent in
respect of any related Mortgaged Property, or in any such case an escrow of
funds in an amount sufficient to cover such payments has been established.
(x) No Material Damage. As of the date of origination of such
Mortgage Loan and, to the actual knowledge of the Depositor, as of the
Closing Date, there was no pending proceeding for the total or partial
condemnation of any related Mortgaged Property that materially affects the
value thereof and such Mortgaged Property is free of material damage.
Except for certain amounts not greater than amounts which would be
considered prudent by an institutional commercial mortgage lender with
respect to a similar mortgage loan and which are set forth in the related
Mortgage or other loan documents relating to such Mortgage Loan, the
related Mortgage Loan documents provide that any condemnation awards will
be applied (or, at the discretion of the mortgagee, will be applied) to
either the repair or restoration of all or part of the related Mortgaged
Property or the reduction of the outstanding principal balance of such
Mortgage Loan.
(xi) Title Insurance. Each related Mortgaged Property is covered
by an ALTA (or its equivalent) lender's title insurance policy issued by a
nationally recognized title insurance company, insuring that each related
Mortgage is a valid first lien on such Mortgaged Property in the original
principal amount of such Mortgage Loan (or, if such Mortgage Loan is part
of a Loan Combination, in the original principal amount of such Loan
Combination) after all advances of principal, subject only to Permitted
Encumbrances and, in the case of a Xxxxxx Trust Mortgage Loan that is part
of a Loan Combination, further subject to the fact that the related
Mortgage also secures the related Non-Trust Mortgage Loan(s) (or, if such
policy has not yet been issued, such insurance may be evidenced by a
binding commitment or binding pro forma marked as binding and signed
(either thereon or on a related escrow letter attached thereto) by the
title insurer or its authorized agent) from a title insurer qualified
and/or licensed in the applicable jurisdiction, as required, to issue such
policy; such title insurance policy is in full force and effect, all
premiums have been paid, is freely assignable and will inure to the benefit
of the Trustee (or, in the case of the GIC Office Trust Mortgage Loan, the
GIC Office Trustee) as sole insured as mortgagee of record, or any such
commitment or binding pro forma is a legal, valid and binding obligation of
such insurer; no claims have been made by the Depositor or any prior holder
of such Mortgage Loan under such title insurance policy; and neither the
Depositor nor the applicable Xxxxxx Mortgage Loan Seller (or any of its
Affiliates) has done, by act or omission, anything that would materially
impair the coverage of any such title insurance policy; such policy or
commitment or binding pro forma contains no exclusion for (or alternatively
it insures over such exclusion, unless such coverage is unavailable in the
relevant jurisdiction) (A) access to a public road, (B) that there is no
material encroachment by any improvements on the related Mortgaged Property
either to or from any adjoining property or
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across any easements on the related Mortgaged Property, and (C) that the
land shown on the survey materially conforms to the legal description of
the related Mortgaged Property.
(xii) Property Insurance. As of the date of its origination and,
to the Depositor's actual knowledge, as of the Cut-off Date, all insurance
required under each related Mortgage (except where a tenant, having an
investment grade rating, is permitted to insure or self-insure under a
lease) was in full force and effect with respect to each related Mortgaged
Property; such insurance included (A) fire and extended perils insurance
included within the classification "All Risk of Physical Loss" or the
equivalent thereof in an amount (subject to a customary deductible) at
least equal to the lesser of (1) 100% of the full insurable replacement
cost of the improvements located on such Mortgaged Property without
reduction for depreciation (except to the extent not permitted by
applicable law) and (2) the initial principal balance of such Mortgage Loan
(or the portion thereof allocable to such Mortgaged Property), and if
applicable, the related hazard insurance policies contain appropriate
endorsements to avoid application of co-insurance, (B) business
interruption or rental loss insurance for a period of not less than 12
months, (C) comprehensive general liability insurance in an amount not less
than $1 million per occurrence, (D) workers' compensation insurance (if the
related Mortgagor has employees and if required by applicable law), and (E)
if (1) such Mortgage Loan is secured by a Mortgaged Property located in the
State of California or in "seismic zone" 3 or 4 and (2) a seismic
assessment as described below revealed a maximum probable or bounded loss
in excess of 20% of the amount of the estimated replacement cost of the
improvements on such Mortgaged Property, seismic insurance; it is an event
of default under such Mortgage Loan if the above-described insurance
coverage is not maintained by the related Mortgagor (except where a tenant,
having an investment grade rating, is permitted to insure or self-insure
under a lease) and the related loan documents provide that any reasonable
out-of-pocket costs and expenses incurred by the mortgagee in connection
with such default in obtaining such insurance coverage may be recovered
from the related Mortgagor; the related Evidence of Property Insurance and
certificate of liability insurance (which may be in the form of an Xxxxx 27
or an Xxxxx 25, respectively), or forms substantially similar thereto,
provide that the related insurance policy may not be terminated or reduced
without at least 10 days prior notice to the mortgagee and (other than
those limited to liability protection) name the mortgagee and its
successors as loss payee; no notice of termination or cancellation with
respect to any such insurance policy has been received by the Depositor or
the applicable Xxxxxx Mortgage Loan Seller or, to the actual knowledge of
Depositor, by any prior mortgagee under the subject Xxxxxx Trust Mortgage
Loan; all premiums under any such insurance policy have been paid through
the Cut-off Date; the insurance policies specified in clauses (A), (B) and
(C) above are required to be maintained with insurance companies having
"financial strength" or "claims paying ability" ratings of at least "A:V"
from A.M. Best Company or at least "A-" (or equivalent) from a nationally
recognized statistical rating agency (or, with respect to certain blanket
insurance policies, such other ratings as are in compliance with S&P's
applicable criteria for rating the Certificates); and, except for certain
amounts not greater than amounts which would be considered prudent by an
institutional commercial mortgage lender with respect to a similar mortgage
loan and which are set forth in the related Mortgage or other loan
documents relating to such Mortgage Loan, and subject to the related
exception schedules, the related Mortgage Loan documents provide that any
property insurance proceeds will be applied (or, at the discretion of the
mortgagee, will be applied) either to the repair or restoration of all or
part of the related Mortgaged Property or the reduction of the outstanding
principal balance of such Mortgage Loan; provided that the related Mortgage
Loan
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documents may entitle the related Mortgagor to any portion of such proceeds
remaining after completion of the repair or restoration of the related
Mortgaged Property or payment of amounts due under such Mortgage Loan. If
the related Mortgaged Property is located in the State of California or in
"seismic zone" 3 or 4, then: (A) either a seismic assessment was conducted
with respect to the related Mortgaged Property in connection with the
origination of such Mortgage Loan or earthquake insurance was obtained; and
(B) the probable maximum loss for the related Mortgaged Property as
reflected in such seismic assessment, if any, was determined based upon a
return period of not less than 475 years, an exposure period of 50 years
and a 10% probability of incidence. Schedule II-(xii) attached hereto is
true and correct in all material respects.
(xiii) No Material Defaults. Other than payments due but not yet
30 days or more delinquent, there is (A) no material default, breach,
violation or event of acceleration existing under the related Mortgage
Note, the related Mortgage or other loan documents relating to such
Mortgage Loan, and (B), to the knowledge of the Depositor, no event which,
with the passage of time or with notice and the expiration of any grace or
cure period, would constitute a material default, breach, violation or
event of acceleration under any of such documents; provided, however, that
this representation and warranty does not cover any default, breach,
violation or event of acceleration (A) that specifically pertains to or
arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in this Section 2.04(b) or
(B) with respect to which: (1) neither the Depositor nor the applicable
Xxxxxx Mortgage Loan Seller has any actual knowledge and (2) written notice
of the discovery thereof is not delivered to the Depositor by the Trustee
or the Master Servicer on or prior to the date occurring twelve months
after the Closing Date. Neither the Depositor nor any prior holder of the
subject Xxxxxx Trust Mortgage Loan has waived, in writing or with
knowledge, any material default, breach, violation or event of acceleration
under any of such documents. Under the terms of such Mortgage Loan, no
person or party other than the mortgagee or its servicing agent may declare
an event of default or accelerate the related indebtedness under such
Mortgage Loan.
(xiv) No Payment Delinquency. As of the Closing Date, such
Mortgage Loan is not, and in the prior 12 months (or since the date of
origination if such Mortgage Loan has been originated within the past 12
months), has not been, 30 days or more past due in respect of any Monthly
Payment.
(xv) Interest Accrual Basis. Such Mortgage Loan accrues interest
on an Actual/360 Basis or a 30/360 Basis; and such Mortgage Loan accrues
interest (payable monthly in arrears) at a fixed rate of interest
throughout the remaining term thereof (except if such Mortgage Loan is an
ARD Mortgage Loan, in which case the accrual rate for interest will
increase after its Anticipated Repayment Date, and except in connection
with the occurrence of a default and the accrual of default interest).
(xvi) Subordinate Debt. Each related Mortgage or other loan
document relating to such Mortgage Loan does not provide for or permit,
without the prior written consent of the holder of the related Mortgage
Note, any related Mortgaged Property or any direct controlling interest in
the Mortgagor to secure any other promissory note or debt (other than
another Mortgage Loan in the Trust Fund and, if such Mortgage Loan is part
of a Loan Combination, the other Mortgage Loan(s) that are part of such
Loan Combination, as applicable).
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(xvii) Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
Accordingly, either as of the date of origination or the Closing Date, the
fair market value of the real property securing such Mortgage Loan was not
less than 80% of the "adjusted issue price" (within the meaning of the
REMIC Provisions) of such Mortgage Loan. For purposes of the preceding
sentence, the fair market value of the real property securing such Mortgage
Loan was first reduced by the amount of any lien on such real property that
is senior to the lien that secures such Mortgage Loan, and was further
reduced by a proportionate amount of any lien that is on a parity with the
lien that secures such Mortgage Loan. No action that occurs by operation of
the terms of such Mortgage Loan would cause such Mortgage Loan to cease to
be a "qualified mortgage", and such Mortgage Loan does not permit the
release or substitution of collateral if such release or substitution (A)
would constitute a "significant modification" of such Mortgage Loan within
the meaning of Treasury regulations section 1.1001-3, (B) would cause such
Mortgage Loan not to be a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code (without regard to clauses (A)(i) or (A)(ii)
thereof) or (C) would cause a "prohibited transaction" within the meaning
of Section 860F(a)(2) of the Code. The related Mortgaged Property, if
acquired in connection with the default or imminent default of such
Mortgage Loan, would constitute "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code.
(xviii) Prepayment Consideration. Prepayment Premiums and Yield
Maintenance Charges payable with respect to such Mortgage Loan, if any,
constitute "customary prepayment penalties" within the meaning of Treasury
regulations section 1.860G-1(b)(2).
(xix) Environmental Conditions. One or more environmental site
assessments (or updates thereof) in each instance meeting American Society
of Testing and Materials requirements were performed by an environmental
consulting firm independent of the Depositor and the Depositor's Affiliates
with respect to each related Mortgaged Property during the 12-month period
preceding the Cut-off Date, and the Depositor, having made no independent
inquiry other than to review the report(s) prepared in connection with the
assessment(s) and/or update(s) referenced herein, has no knowledge of, and
has not received actual notice of, any material and adverse environmental
condition or circumstance affecting such Mortgaged Property that was not
disclosed in such report(s); none of the environmental reports reveal any
circumstances or conditions that are in violation of any applicable
environmental laws, or if such report does reveal such circumstances, then
(1) the same have been remediated in all material respects, (2) sufficient
funds have been escrowed or a letter of credit, guaranty or other
instrument has been delivered for purposes of covering the estimated costs
of such remediation, (3) the responsible party set forth on Schedule
II-(xix) (which responsible party has been reasonably determined by the
applicable Xxxxxx Mortgage Loan Seller to have the creditworthiness to do
so) is currently taking remedial or other appropriate action to address the
environmental issue consistent with the recommendations in such site
assessment, (4) the cost of the environmental issue relative to the value
of such Mortgaged Property was de minimis, or (5) environmental insurance
has been obtained.
The Mortgagor with respect to such Mortgage Loan has represented,
warranted and covenanted generally to the effect that, to its knowledge,
except as set forth in the environmental reports described above, it has
not used, caused or permitted to exist, and will not use, cause or permit
to exist, on the related Mortgaged Property, any Hazardous Materials in any
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manner which violates applicable federal, state or local laws governing the
use, storage, handling, production or disposal of Hazardous Materials at
the related Mortgaged Property and (A) the related Mortgagor and a natural
person have agreed to indemnify the mortgagee under such Mortgage Loan, and
its successor and assigns, against any losses, liabilities, damages,
penalties, fines, claims and reasonable out-of-pocket expenses (excluding
lost profits, consequential damages and diminution of value of the related
Mortgaged Property, provided that no Xxxxxx Trust Mortgage Loan with an
original principal balance equal to or greater than $15,000,000 contains an
exclusion for "diminution in value" of the related Mortgaged Property)
paid, suffered or incurred by such mortgagee resulting from such
Mortgagor's material violation of any environmental law or a material
breach of the environmental representations and warranties or covenants
given by the related Mortgagor in connection with such Mortgage Loan or (B)
environmental insurance has been obtained. If such Mortgage Loan is a
Mortgage Loan as to which neither a natural person has provided the
indemnity set forth above nor environmental insurance has been obtained,
such Mortgage Loan is set forth on Schedule II-(xix).
The Depositor has not taken any action with respect to such
Mortgage Loan or the related Mortgaged Property that could subject the
Depositor or its successors and assigns in respect of such Mortgage Loan to
liability under CERCLA or any other applicable federal, state or local
environmental law. The related Mortgage or other loan documents require the
related Mortgagor to comply with all applicable federal, state and local
environmental laws and regulations.
(xx) Realization Against Real Estate Collateral. The related
Mortgage Note, Mortgage(s), Assignment(s) of Leases and other loan
documents securing such Mortgage Loan, if any, contain customary and,
subject to the limitations and exceptions as to enforceability in paragraph
(b)(v) above, enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the practical realization
against the related Mortgaged Property or Properties of the principal
benefits of the security intended to be provided thereby, including
realization by judicial or, if applicable, non-judicial foreclosure.
(xxi) Bankruptcy. The related Mortgagor is not a debtor in any
bankruptcy, reorganization, insolvency or comparable proceeding; provided,
however, that this representation and warranty does not cover any such
bankruptcy, reorganization, insolvency or comparable proceeding with
respect to which: (1) neither the Depositor nor the applicable Xxxxxx
Mortgage Loan Seller has any actual knowledge and (2) written notice of the
discovery thereof is not delivered to the Depositor by the Trustee or the
Master Servicer on or prior to the date occurring twelve months after the
Closing Date.
(xxii) Loan Security. Such Mortgage Loan is secured by a Mortgage
on either a fee simple interest or a leasehold estate in a commercial
property or multifamily property, including the related Mortgagor's
interest in the improvements on the related Mortgaged Property.
(xxiii) Amortization. Such Mortgage Loan does not provide for
negative amortization unless such Mortgage Loan is an ARD Mortgage Loan, in
which case it may occur only after the Anticipated Repayment Date.
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(xxiv) Whole Loan. Such Mortgage Loan is a whole loan, contains
no equity participation by the lender or shared appreciation feature and
does not provide for any contingent interest in the form of participation
in the cash flow of the related Mortgaged Property.
(xxv) Due-on-Encumbrance. Each Xxxxxx Trust Mortgage Loan
contains provisions for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without the prior written
consent of the mortgagee or Rating Agency confirmation that an Adverse
Rating Event with respect to any Class of Certificates would not occur, any
related Mortgaged Property, any direct interest therein or any direct
controlling interest in the Mortgagor is directly encumbered in connection
with subordinate financing; and, except in the case of a Xxxxxx Trust
Mortgage Loan that is part of a Loan Combination (for which such consent
has been granted with respect to the related Non-Trust Mortgage Loan(s)),
and except for the respective Xxxxxx Trust Mortgage Loans secured by the
Mortgaged Properties listed on Schedule II-(xxv) (for which such consent
has been granted with respect to mezzanine debt), no such consent has been
granted by the applicable Xxxxxx Mortgage Loan Seller. To the Depositor's
knowledge, no related Mortgaged Property is encumbered in connection with
subordinate financing (except that each Mortgaged Property securing a
Xxxxxx Trust Mortgage Loan that is part of a Loan Combination also secures
the related Non-Trust Mortgage Loan(s)); however, if the related Mortgaged
Property is listed on Schedule II-(xxv), then certain direct controlling
equity holders in the related Mortgagor are known to the Depositor to have
incurred debt secured by their ownership interest in the related Mortgagor.
(xxvi) Due-on-Sale. Except with respect to transfers of certain
non-controlling and/or minority interests in the related Mortgagor as
specified in the related Mortgage or with respect to transfers of interests
in the related Mortgagor between immediate family members and with respect
to transfers by devise, by descent or by operation of law or otherwise upon
the death or incapacity of a person having an interest in the related
Mortgagor, each Xxxxxx Trust Mortgage Loan contains either (A) provisions
for the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if any related Mortgaged Property or interest therein is
directly or indirectly transferred or sold without the prior written
consent of the mortgagee or rating agency confirmation, or (B) provisions
for the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if any related Mortgaged Property or interest therein is
directly or indirectly transferred or sold without the related Mortgagor
having satisfied certain conditions specified in the related Mortgage with
respect to permitted transfers (which conditions are consistent with the
practices of prudent commercial mortgage lenders). The Mortgage (under
either specific or general expense provisions) requires the Mortgagor to
pay all reasonable fees and expenses associated with securing the consent
or approval of the holder of the Mortgage for all actions involving the
transfer of interests in such Mortgagor or the related Mortgaged Property
requiring such consent or approval under the Mortgage including the cost of
any required counsel opinions relating to REMIC or other securitization and
tax issues.
(xxvii) Mortgagor Concentration. Except in the case of the 000
Xxxxx Xxxxxx Trust Mortgage Loan, the GIC Office Trust Mortgage Loan and
the Somerset Collection Trust Mortgage Loan, such Mortgage Loan, together
with any other Xxxxxx Trust Mortgage Loan made to the same Mortgagor or to
an Affiliate of such Mortgagor, does not represent more than 5% of the
Initial Pool Balance.
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(xxviii) Waivers; Modifications. Except as set forth in a written
instrument included in the related Mortgage File, the (A) material terms of
the related Mortgage Note, the related Mortgage(s) and any related loan
agreement and/or lock-box agreement have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded by the
mortgagee in any manner, and (B) no portion of a related Mortgaged Property
has been released from the lien of the related Mortgage, in the case of (A)
and/or (B), to an extent or in a manner that in any such event materially
interferes with the security intended to be provided by such document or
instrument. Schedule II-(xxviii) identifies each Xxxxxx Trust Mortgage Loan
as to which, since the latest date the related due diligence materials were
delivered to Anthracite Capital, Inc., there has been given, made or
consented to an alteration, modification or assumption of the terms of the
related Mortgage Note, Mortgage(s) or any related loan agreement and/or
lock-box agreement and/or as to which, since such date, there has been a
waiver other than as related to routine operational matters or minor
covenants.
(xxix) Inspection. Each related Mortgaged Property was inspected
by or on behalf of the related originator during the six-month period prior
to the related origination date.
(xxx) Property Release. The terms of the related Mortgage Note,
Mortgage(s) or other loan document securing such Mortgage Loan do not
provide for the release from the lien of such Mortgage of any portion of
the related Mortgaged Property that is necessary to the operation of such
Mortgaged Property or was given material value in the underwriting of such
Mortgage Loan at origination, without (A) payment in full of such Mortgage
Loan, (B) delivery of Defeasance Collateral in the form of "government
securities" within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), (C) payment
of a release price equal to at least 125% of the amount of such Mortgage
Loan allocated to the related Mortgaged Property or (D) the satisfaction of
certain underwriting and legal requirements which would be considered
reasonable by a prudent institutional commercial mortgage lender.
(xxxi) Qualifications; Licensing; Zoning. The related Mortgagor
has covenanted in the related Mortgage Loan documents to maintain the
related Mortgaged Property in compliance in all material respects with, to
the extent it is not grandfathered under, all applicable laws, zoning
ordinances, rules, covenants and restrictions affecting the construction,
occupancy, use and operation of such Mortgaged Property, and the related
originator performed the type of due diligence in connection with the
origination of such Mortgage Loan customarily performed by prudent
institutional commercial and multifamily mortgage lenders with respect to
the foregoing matters; the Depositor has received no notice of any material
violation of, to the extent is has not been grandfathered under, any
applicable laws, zoning ordinances, rules, covenants or restrictions
affecting the construction, occupancy, use or operation of the related
Mortgaged Property (unless affirmatively covered by the title insurance
referred to in paragraph (b)(xi) above (or an endorsement thereto)); to the
Depositor's knowledge (based on surveys, opinions, letters from
municipalities and/or title insurance obtained in connection with the
origination of such Mortgage Loan), no improvement that was included for
the purpose of determining the appraised value of the related Mortgaged
Property at the time of origination of such Mortgage Loan lay outside the
boundaries and building restriction lines of such property, in effect at
the time of origination of such Mortgage Loan, to an extent which would
have a material adverse affect on the related Mortgagor's use and operation
of such Mortgaged Property
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(unless grandfathered with respect thereto or affirmatively covered by the
title insurance referred to in paragraph (b)(xi) above (or an endorsement
thereto)), and no improvements on adjoining properties encroached upon such
Mortgaged Property to any material extent. For purposes of this paragraph,
a Mortgaged Property shall be deemed "grandfathered" with respect to any
laws, zoning ordinances, rules, covenants or restrictions affecting the
construction, occupancy, use or operation of the related Mortgaged
Property, if and to the extent that any of the construction, occupancy, use
and operation of such Mortgaged Property: (A) conformed in all material
respects with such laws, zoning ordinances, rules, covenants and
restrictions affecting the improvements on the related Mortgaged Property
at the time the improvements on the related Mortgaged Property were
initially constructed or put into operation; and/or (B) was not addressed
or otherwise prohibited by any such laws, zoning ordinances, rules,
covenants and restrictions affecting the related Mortgaged Property at the
time the improvements on the related Mortgaged Property were initially
constructed or put into operation.
(xxxii) Property Financial Statements. The related Mortgagor has
covenanted in the related Mortgage Loan documents to deliver to the
mortgagee annual operating statements, rent rolls and related information
of each related Mortgaged Property and annual financial statements. If such
Mortgage Loan had an original principal balance greater than $3 million,
then the related Mortgagor has covenanted to provide such operating
statements, rent rolls and related information on a quarterly basis. If
such Mortgage Loan has an original principal balance equal to or greater
than $20 million, the related Mortgagor, if it obtains an audited financial
statement, is required to provide a copy thereof to the holder of such
Mortgage Loan at the related mortgagee's request.
(xxxiii) Single Purpose Entity. If such Mortgage Loan has a
Cut-off Date Balance in excess of $25 million, then the related Mortgagor
is obligated by its organizational documents and the related Mortgage Loan
documents to be a Single Purpose Entity for so long as such Mortgage Loan
is outstanding; and, if such Mortgage Loan has a Cut-off Date Balance
greater than $5 million and less than $25 million, then the related
Mortgagor is obligated by its organizational documents and/or the related
Mortgage Loan documents to own the related Mortgaged Property and no other
material assets, except such as are incidental to the ownership of such
Mortgaged Property for so long as such Mortgage Loan is outstanding. For
purposes of this representation, "Single Purpose Entity" means an entity
whose organizational documents or the related Mortgage Loan documents
provide substantially to the effect that such entity: (A) is formed or
organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing such Mortgage Loan, (B) may not engage in any
business unrelated to the related Mortgaged Property or Mortgaged
Properties, (C) does not have any material assets other than those related
to its interest in and operation of such Mortgaged Property or Mortgaged
Properties and (D) may not incur indebtedness other than as permitted by
the related Mortgage or other Mortgage Loan documents. If such Mortgage
Loan has an initial principal balance of $25 million and above and the
related Mortgagor is a single member limited liability company, such
Mortgagor's organizational documents provide that such Mortgagor shall not
dissolve or liquidate upon the bankruptcy, dissolution, liquidation or
death of its sole member and is organized in a jurisdiction that provides
for such continued existence and there was obtained opinion of counsel
confirming such continued existence. If such Mortgage Loan has, or is part
of a group of Xxxxxx Trust Mortgage Loans with affiliated Mortgagors
having, a Cut-off Date Balance equal to or greater than 2% of the Initial
Pool Balance, or if such Mortgage Loan
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has an original principal balance equal to or greater than $25 million,
there was obtained an opinion of counsel regarding non-consolidation of
such Mortgagor.
(xxxiv) Advancing of Funds. No advance of funds has been made,
directly or indirectly, by the originator or the Depositor to the related
Mortgagor other than pursuant to the related Mortgage Note; and, to the
actual knowledge of the Depositor, no funds have been received from any
Person other than such Mortgagor for or on account of payments due on the
related Mortgage Note.
(xxxv) Legal Proceedings. To the Depositor's actual knowledge,
there are no pending actions, suits or proceedings by or before any court
or governmental authority against or affecting the related Mortgagor or any
related Mortgaged Property that, if determined adversely to such Mortgagor
or Mortgaged Property, would materially and adversely affect the value of
such Mortgaged Property or the ability of such Mortgagor to pay principal,
interest or any other amounts due under such Mortgage Loan.
(xxxvi) Originator Duly Authorized. To the extent required under
applicable law as of the Closing Date, the originator of such Mortgage Loan
was qualified and authorized to do business in each jurisdiction in which a
related Mortgaged Property is located at all times when it held such
Mortgage Loan to the extent necessary to ensure the enforceability of such
Mortgage Loan.
(xxxvii) Trustee under Deed of Trust. If the related Mortgage is
a deed of trust, a trustee, duly qualified under applicable law to serve as
such, is properly designated and serving under such Mortgage, and no fees
and expenses are payable to such trustee except in connection with a
trustee sale of the related Mortgaged Property following a default or in
connection with the release of liens securing such Mortgage Loan and any
such fees and expenses are the obligation of the Mortgagor under the terms
of the Mortgage.
(xxxviii) Cross-Collateralization. The related Mortgaged Property
is not, to the Depositor's knowledge, collateral or security for any
mortgage loan that is not in the Trust Fund, and if such Mortgage Loan is
cross-collateralized, it is cross-collateralized only with other Mortgage
Loans in the Trust Fund, except that a Xxxxxx Trust Mortgage Loan that is
part of a Loan Combination is secured by one or more Mortgaged Properties
that also secure the related Non-Trust Mortgage Loan(s). The security
interest/lien on each material item of collateral for such Mortgage Loan
has been assigned to the Trustee (or, in the case of the GIC Office Trust
Mortgage Loan, the GIC Office Trustee).
(xxxix) Flood Hazard Insurance. None of the improvements on any
related Mortgaged Property are located in a flood hazard area as defined by
the Federal Insurance Administration or, if any portion of the improvements
on the related Mortgaged Property are in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards falling within zones A or V in the national flood insurance
program, the Mortgagor has obtained and is required to maintain flood
insurance.
(xl) Engineering Assessments. One or more engineering assessments
or updates of a previously conducted engineering assessment were performed
by an Independent engineering consulting firm with respect to each related
Mortgaged Property during the 00-
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month period preceding the Cut-off Date, and the Depositor, having made no
independent inquiry other than to review the report(s) prepared in
connection with such assessment(s) and or update(s), does not have any
knowledge of any material and adverse engineering condition or circumstance
affecting such Mortgaged Property that was not disclosed in such report(s);
and, to the extent such assessments revealed deficiencies, deferred
maintenance or similar conditions, either (A) the estimated cost has been
escrowed or a letter of credit has been provided, (B) repairs have been
made or (C) the scope of the deferred maintenance relative to the value of
such Mortgaged Property was de minimis.
(xli) Escrows. All escrow deposits and payments relating to such
Mortgage Loan are under control of the Depositor or the servicer of such
Mortgage Loan and all amounts required as of the date hereof under the
related Mortgage Loan documents to be deposited by the related Mortgagor
have been deposited. The Depositor is transferring to the Trustee (or, in
the case of the GIC Office Trust Mortgage Loan, has transferred to the GIC
Office Trustee) all of its right, title and interest in and to such
amounts.
(xlii) Licenses, Permits and Authorizations. The related
Mortgagor has represented in the related Mortgage Loan documents that, and
to the actual knowledge of the Depositor, as of the date of origination of
such Mortgage Loan, all material licenses, permits and authorizations then
required for use of the related Mortgaged Property by such Mortgagor, the
related lessee, franchisor or operator have been issued and were valid and
in full force and effect.
(xliii) Origination, Servicing and Collection Practices. The
origination, servicing and collection practices used by the Depositor or
any prior holder of the related Mortgage Note with respect to such Mortgage
Loan have been in all respects legal and have met customary industry
standards.
(xliv) Fee Simple. Unless such Mortgage Loan is covered by the
representation and warranty in the immediately following paragraph (xlv),
such Mortgage Loan is secured in whole or in material part by a fee simple
interest.
(xlv) Leasehold Interest Only. If such Mortgage Loan is secured
in whole or in material part by the interest of the related Mortgagor as a
lessee under a Ground Lease but not by the related fee interest, then:
(A) such Ground Lease or a memorandum thereof has been or will
be duly recorded and such Ground Lease permits the interest
of the lessee thereunder to be encumbered by the related
Mortgage or, if consent of the lessor thereunder is
required, it has been obtained prior to the Closing Date;
(B) upon the foreclosure of such Mortgage Loan (or acceptance of
a deed in lieu thereof), the Mortgagor's interest in such
Ground Lease is assignable to the Trustee (or, in the case
of the GIC Office Trust Mortgage Loan, if applicable, the
GIC Office Trustee) without the consent of the lessor
thereunder (or, if any such consent is required, it has been
obtained prior to the Closing Date) and, in the event that
it is so assigned, is further assignable by the Trustee (or,
in the case of the GIC Office Trust
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Mortgage Loan, if applicable, the GIC Office Trustee) and
its successors without a need to obtain the consent of such
lessor (or, if any such consent is required, it has been
obtained prior to the Closing Date or may not be
unreasonably withheld);
(C) such Ground Lease may not be amended or modified without the
prior written consent of the mortgagee under such Mortgage
Loan and any such action without such consent is not binding
on such mortgagee, its successors or assigns;
(D) unless otherwise set forth in such Ground Lease, such Ground
Lease does not permit any increase in the amount of rent
payable by the ground lessee thereunder during the term of
such Mortgage Loan;
(E) such Ground Lease was in full force and effect as of the
date of origination of the related Mortgage Loan and, at the
Closing Date, such Ground Lease is in full force and effect;
to the actual knowledge of the Seller, except for payments
due but not yet 30 days or more delinquent, (1) there is no
material default under such Ground Lease, and (2) there is
no event which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute
a material default under such Ground Lease;
(F) such Ground Lease, or an estoppel or consent letter received
by the mortgagee under such Mortgage Loan from the lessor,
requires the lessor thereunder to give notice of any default
by the lessee to such mortgagee; and such Ground Lease, or
an estoppel or consent letter received by the mortgagee
under such Mortgage Loan from the lessor, further provides
either (1) that no notice of termination given under such
Ground Lease is effective against such mortgagee unless a
copy has been delivered to the mortgagee in the manner
described in such Ground Lease, estoppel or consent letter
or (2) that upon any termination of such Ground Lease the
lessor will enter into a new lease with such mortgagee upon
such mortgagee's request;
(G) based upon the related policy of title insurance, the ground
lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than the related ground
lessor's related fee interest and any Permitted
Encumbrances;
(H) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity to cure any curable default under
such Ground Lease (not less than the time provided to the
related lessee under such ground lease to cure such default)
before the lessor thereunder may terminate or cancel such
Ground Lease;
(I) such Ground Lease has a currently effective term (including
any options exercisable by the holder of the related
Mortgage) that extends not less
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than 20 years beyond the Stated Maturity Date of the related
Mortgage Loan;
(J) under the terms of such Ground Lease, any estoppel or
consent letter received by the mortgagee under such Mortgage
Loan from the lessor and the related Mortgage Loan
documents, taken together, any related insurance proceeds,
other than de minimis amounts for minor casualties, with
respect to the leasehold interest, or condemnation proceeds
will be applied either to the repair or restoration of all
or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by it having the right to
hold and disburse such proceeds as the repair or restoration
progresses (except in such cases where a provision entitling
another party to hold and disburse such proceeds would not
be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or to the payment of the
outstanding principal balance of the Mortgage Loan, together
with any accrued interest thereon;
(K) such Ground Lease does not impose any restrictions on use or
subletting which would be viewed as commercially
unreasonable by a prudent commercial mortgage lender;
(L) upon the request of the mortgagee under such Mortgage Loan,
the ground lessor under such Ground Lease is required to
enter into a new lease upon termination of the Ground Lease
for any reason prior to the expiration of the term thereof,
including as a result of the rejection of the Ground Lease
in a bankruptcy of the related Mortgagor unless the
mortgagee under such Mortgage Loan fails to cure a default
of the lessee under such Ground Lease following notice
thereof from the lessor; and
(M) the terms of the related Ground Lease have not been waived,
modified, altered, satisfied, impaired, canceled,
subordinated or rescinded in any manner which materially
interferes with the security intended to be provided by such
Mortgage, except as set forth in an instrument or document
contained in the related Mortgage File.
(xlvi) Fee Simple and Leasehold Interest. If such Mortgage Loan
is secured by the interest of the related Mortgagor under a Ground Lease
and by the related fee interest, then (A) such fee interest is subject, and
subordinated of record, to the related Mortgage, (B) the related Mortgage
does not by its terms provide that it will be subordinated to the lien of
any other mortgage or other lien upon such fee interest, and (C) upon
occurrence of a default under the terms of the related Mortgage by the
related Mortgagor, the mortgagee under such Mortgage Loan has the right
(subject to the limitations and exceptions set forth in paragraph (b)(v)
above) to foreclose upon or otherwise exercise its rights with respect to
such fee interest.
(xlvii) Tax Lot; Utilities. Each related Mortgaged Property
constitutes one or more complete separate tax lots (or the related
Mortgagor has covenanted to obtain separate tax lots and an escrow of funds
in an amount sufficient to pay taxes resulting from a breach thereof has
been established) or is subject to an endorsement under the related title
insurance policy; and
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each related Mortgaged Property is served by a public or other acceptable
water system, a public sewer (or, alternatively, a septic) system, and
other customary utility facilities.
(xlviii) Defeasance. If such Mortgage Loan is a Defeasance
Mortgage Loan, the related Mortgage Loan documents require the related
Mortgagor to pay all reasonable costs associated with the defeasance
thereof, and either: (A) require the prior written consent of, and
compliance with the conditions set by, the holder of such Mortgage Loan for
defeasance or (B) require that (1) defeasance may not occur prior to the
second anniversary of the Closing Date, (2) the Defeasance Collateral must
be government securities within the meaning of Treasury regulations section
1.860G-2(a)(8)(i) and must be sufficient to make all scheduled payments
under the related Mortgage Note when due (assuming for each ARD Mortgage
Loan that it matures on its Anticipated Repayment Date or on the date when
any open prepayment period set forth in the related Mortgage Loan documents
commences) or, in the case of a partial defeasance that effects the release
of a material portion of the related Mortgaged Property, to make all
scheduled payments under the related Mortgage Note on that part of such
Mortgage Loan equal to at least 110% of the allocated loan amount of the
portion of the Mortgaged Property being released, (3) an independent
accounting firm (which may be the Mortgagor's independent accounting firm)
certify that the Defeasance Collateral is sufficient to make such payments,
(4) such Mortgage Loan be assumed by a successor entity designated by the
holder of such Mortgage Loan (or by the Mortgagor with the approval of such
lender), and (5) counsel provide an opinion letter to the effect that the
Trustee (or, in the case of the GIC Office Trust Mortgage Loan, the GIC
Office Trustee) has a perfected security interest in such Defeasance
Collateral prior to any other claim or interest.
(xlix) Primary Servicing Rights. Except with respect to the
servicer(s) under the GIC Office Servicing Agreement (or any successor
servicer(s) appointed pursuant thereto or pursuant to the GIC Office
Co-Lender Agreement), no Person has been granted or conveyed the right to
primary service such Mortgage Loan or receive any consideration in
connection therewith except (A) as contemplated in this Agreement with
respect to primary servicers that are to be sub-servicers of the Master
Servicer, (B) as has been conveyed to the Master Servicer, or (C) as has
been terminated.
(l) Mechanics' and Materialmen's Liens. As of origination and, to
the Depositor's knowledge, as of the Closing Date, (A) the related
Mortgaged Property is free and clear of any and all mechanics' and
materialmen's liens that are not bonded, insured against or escrowed for,
and (B) no rights are outstanding that under law could give rise to any
such lien that would be prior or equal to the lien of the related Mortgage
(unless affirmatively covered by the title insurance referred to in
paragraph (b)(xi) above (or an endorsement thereto)). The Depositor has not
received actual notice with respect to such Mortgage Loan that any
mechanics' and materialmen's liens have encumbered the related Mortgaged
Property since origination that have not been released, bonded, insured
against or escrowed for.
(li) Due Date. The Due Date for such Mortgage Loan is scheduled
to be the first day, the eighth day or the eleventh day of each month.
(lii) Assignment of Leases. Subject only to Permitted
Encumbrances, the related Assignment of Leases set forth in or separate
from the related Mortgage and delivered in
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connection with such Mortgage Loan establishes and creates a valid and,
subject only to the exceptions and limitations in paragraph (b)(v) above,
enforceable first priority lien and first priority security interest in the
related Mortgagor's right to receive payments due under any and all leases,
subleases, licenses or other agreements pursuant to which any Person is
entitled to occupy, use or possess all or any portion of the related
Mortgaged Property subject to the related Mortgage, except that a license
may have been granted to the related Mortgagor to exercise certain rights
and perform certain obligations of the lessor under the relevant lease or
leases; and each assignor thereunder has the full right to assign the same.
(liii) Mortgagor Formation or Incorporation. To the Depositor's
knowledge, the related Mortgagor is a Person formed or incorporated in a
jurisdiction within the United States.
(liv) No Ownership Interest in Mortgagor. The Depositor has no
ownership interest in the related Mortgaged Property or the related
Mortgagor other than as the holder of such Mortgage Loan being sold and
assigned, and neither the Depositor nor any affiliate of the Depositor has
any obligation to make any capital contributions to the related Mortgagor
under the Mortgage or any other related Mortgage Loan document.
(lv) No Undisclosed Common Ownership. To the Depositor's
knowledge, except where multiple properties secure an individual Xxxxxx
Trust Mortgage Loan, except for properties securing Xxxxxx Trust Mortgage
Loans that are cross-defaulted and cross-collateralized, and except as
listed on Schedule II-(lv), no two properties securing Xxxxxx Trust
Mortgage Loans are directly or indirectly under common ownership.
(lvi) Loan Outstanding. Such Mortgage Loan has not been satisfied
in full, and except as expressly contemplated by the related loan agreement
or other documents contained in the related Mortgage File, no material
portion of the related Mortgaged Property has been released.
(lvii) Usury. Such Mortgage Loan complied with or was exempt from
all applicable usury laws in effect at its date of origination.
(lviii) ARD Mortgage Loan. If such Mortgage Loan is an ARD
Mortgage Loan, then:
(A) the related Anticipated Repayment Date is not less than five
years from the origination date for such Mortgage Loan;
(B) such Mortgage Loan provides that from the related
Anticipated Repayment Date through the maturity date for
such Mortgage Loan, all excess cash flow (net of normal
monthly debt service on such Mortgage Loan, monthly expenses
reasonably related to the operation of the related Mortgaged
Property, amounts due for reserves established under such
Mortgage Loan, and payments for any other expenses,
including capital expenses, related to such Mortgaged
Property which are approved by mortgagee) will be applied to
repay principal and accrued interest due under such Mortgage
Loan;
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(C) no later than the related Anticipated Repayment Date, the
related Mortgagor is required (if it has not previously done
so) to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property will be deposited
directly into a designated account controlled by the
mortgagee under such Mortgage Loan; and
(D) the interest rate of such Mortgage Loan will increase by at
least two (2) percentage points in connection with the
passage of its Anticipated Repayment Date.
(lix) Appraisal. An appraisal of the related Mortgaged Property
was conducted in connection with the origination of such Mortgage Loan; and
such appraisal satisfied either (A) the requirements of the "Uniform
Standards of Professional Appraisal Practice" as adopted by the Appraisal
Standards Board of the Appraisal Foundation, or (B) the guidelines in Title
XI of the Financial Institutions Reform, Recovery and Enforcement Act of
1989, in either case as in effect on the date such Mortgage Loan was
originated.
For purposes of the foregoing representations and warranties in this
Section 2.04(b), the phrases "to the knowledge of the Depositor" or "to the
Depositor's knowledge" shall mean, except where otherwise expressly set forth
below, the actual state of knowledge of the Depositor and the applicable Xxxxxx
Mortgage Loan Seller regarding the matters referred to, in each case (i) after
having conducted such inquiry and due diligence into such matters as would be
customarily performed by prudent institutional commercial or multifamily (as
applicable) mortgage lenders, and in all events as required by the Depositor's
and/or the Xxxxxx Mortgage Loan Seller's underwriting practices, at the time of
the origination of the particular Xxxxxx Trust Mortgage Loan, with respect to
the origination of multifamily or commercial (as applicable) mortgage loans
intended for securitization and (ii) subsequent to such origination, utilizing
such servicing and monitoring practices as would satisfy the Servicing Standard;
and the phrases "to the actual knowledge of the Depositor" or "to the
Depositor's actual knowledge" shall mean, except where otherwise expressly set
forth below, the actual state of the Depositor's and the applicable Xxxxxx
Mortgage Loan Seller's knowledge without any express or implied obligation to
make inquiry. All information contained in documents which are part of or
required to be part of a Mortgage File shall be deemed to be within the
knowledge and the actual knowledge of the Depositor and the applicable Xxxxxx
Mortgage Loan Seller. Wherever there is a reference to receipt by, or possession
of, the Depositor of any information or documents, or to any action taken by the
Depositor or not taken by the Depositor or its agents or employees, such
reference shall include the receipt or possession of such information or
documents by, or the taking or not taking of such action by any of the
Depositor, the applicable Xxxxxx Mortgage Loan Seller or any servicer acting on
behalf of either.
Except as expressly provided in Section 2.04(a), the Depositor does
not make any representations or warranties regarding the UBS Trust Mortgage
Loans.
(c) The representations, warranties and covenants of the Depositor set
forth in Section 2.04(a) and Section 2.04(b) shall survive the execution and
delivery of this Agreement and shall inure to the benefit of the Persons for
whose benefit they were made for so long as the Trust Fund remains in existence.
Upon discovery by any party hereto of any breach of any of such representations,
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warranties and covenants, the party discovering such breach shall give prompt
written notice thereof to the other parties.
SECTION 2.05. Acceptance of Grantor Trusts by Trustee; Issuance of the
Class V Certificates.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of any collections of Additional Interest Received by the
Trust on or with respect to the ARD Trust Mortgage Loans and any successor REO
Trust Mortgage Loans with respect thereto constitute a Grantor Trust for federal
income tax purposes and, further, that such segregated pool of assets be
designated as "Grantor Trust V". The Trustee, by its execution and delivery
hereof, acknowledges the assignment to it of the assets of Grantor Trust V and
declares that it holds and will hold such assets in trust for the exclusive use
and benefit of all present and future Holders of the Class V Certificates.
Concurrently with the assignment to it of the assets included in Grantor Trust
V, the Trustee shall execute, and the Certificate Registrar shall authenticate
and deliver, to or upon the order of the Depositor, the Class V Certificates in
authorized denominations evidencing, in the aggregate, the entire beneficial
ownership of Grantor Trust V. The rights of Holders of the Class V Certificates,
to receive distributions from the proceeds of Grantor Trust V, and all ownership
interests of such Holders in and to such distributions, shall be as set forth in
this Agreement.
(b) It is the intention of the parties hereto that the segregated pool
of assets consisting of the Excess Servicing Strip shall constitute a Grantor
Trust for federal income tax purposes and the beneficial ownership interest
therein shall not be certificated and shall be subject to the provisions of
Section 3.11(a) hereto.
SECTION 2.06. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests.
The Trustee hereby acknowledges the assignment to it of the assets
included in REMIC I. Concurrently with such assignment and in exchange therefor,
(a) the REMIC I Regular Interests have been issued, and (b) pursuant to the
written request of the Depositor executed by an authorized officer thereof, the
Trustee, as Certificate Registrar, has executed, and the Trustee, as
Authenticating Agent, has authenticated and delivered to or upon the order of
the Depositor, the Class R-I Certificates in authorized denominations. The
interests evidenced by the Class R-I Certificates, together with the REMIC I
Regular Interests, constitute the entire beneficial ownership of REMIC I. The
rights of the Class R-I Certificateholders and REMIC II (as holder of the REMIC
I Regular Interests) to receive distributions from the proceeds of REMIC I in
respect of the Class R-I Certificates and the REMIC I Regular Interests,
respectively, and all ownership interests evidenced or constituted by the Class
R-I Certificates and the REMIC I Regular Interests, shall be as set forth in
this Agreement.
SECTION 2.07. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the Class R-II
Certificates and REMIC III as the holder of the REMIC II Regular Interests. The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests and
declares that it holds and will hold the same in
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trust for the exclusive use and benefit of all present and future Holders of the
Class R-II Certificates and the REMIC III Certificates.
SECTION 2.08. Execution, Authentication and Delivery of Class R-II
Certificates; Creation of REMIC II Regular Interests.
Concurrently with the assignment to the Trustee of the REMIC I Regular
Interests and in exchange therefor, (a) the REMIC II Regular Interests have been
issued and (b) pursuant to the written request of the Depositor executed by an
authorized officer thereof, the Trustee, as Certificate Registrar, has executed,
and the Trustee, as Authenticating Agent, has authenticated and delivered to or
upon the order of the Depositor, the Class R-II Certificates in authorized
denominations. The rights of the Class R-II Certificateholders and REMIC III (as
holder of the REMIC II Regular Interests) to receive distributions from the
proceeds of REMIC II in respect of the Class R-II Certificates and the REMIC II
Regular Interests, respectively, and all ownership interests evidenced or
constituted by the Class R-II Certificates and the REMIC II Regular Interests,
shall be as set forth in this Agreement.
SECTION 2.09. Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC II
Regular Interests to the Trustee for the benefit of the Holders of the REMIC III
Certificates. The Trustee acknowledges the assignment to it of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC III
Certificates.
SECTION 2.10. Execution, Authentication and Delivery of REMIC III
Certificates.
Concurrently with the assignment to the Trustee of the REMIC II
Regular Interests and in exchange therefor, pursuant to the written request of
the Depositor executed by an officer thereof, the Trustee, as Certificate
Registrar, has executed, and the Trustee, as Authenticating Agent, has
authenticated and delivered to or upon the order of the Depositor, the REMIC III
Certificates in authorized denominations evidencing the entire beneficial
ownership of REMIC III. The rights of the Holders of the respective Classes of
REMIC III Certificates to receive distributions from the proceeds of REMIC III
in respect of their REMIC III Certificates, and all ownership interests
evidenced or constituted by the respective Classes of REMIC III Certificates in
such distributions, shall be as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) All of the Serviced Mortgage Loans and Administered REO Properties
are to be serviced and administered by the Master Servicer and/or the Special
Servicer hereunder. Each of the Master Servicer and the Special Servicer shall
service and administer the Serviced Mortgage Loans and Administered REO
Properties that it is obligated to service and administer pursuant to this
Agreement on behalf of the Trustee, for the benefit of the Certificateholders
(or, in the case of a Serviced Loan Combination, for the benefit of the
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), as determined in the good faith and reasonable judgment of the
Master Servicer or the Special Servicer, as the case may be, in accordance with:
(i) any and all applicable laws; (ii) the express terms of this Agreement; (iii)
the express terms of the respective Serviced Mortgage Loans and any and all
related intercreditor, co-lender or similar agreements (including with respect
to performing the duties of the holders of the respective Trust Mortgage Loans
thereunder (to the extent not inconsistent with this Agreement and to the extent
consistent with the Servicing Standard)); and (iv) to the extent consistent with
the foregoing, the Servicing Standard. The Master Servicer or the Special
Servicer, as applicable in accordance with this Agreement, shall service and
administer each Cross-Collateralized Group as a single Serviced Mortgage Loan as
and when necessary and appropriate consistent with the Servicing Standard.
Without limiting the foregoing, and subject to Section 3.21, (i) the Master
Servicer shall service and administer all of the Performing Serviced Mortgage
Loans and shall render such services with respect to the Specially Serviced
Mortgage Loans as are specifically provided for herein, and (ii) the Special
Servicer shall service and administer each Specially Serviced Mortgage Loan and
Administered REO Property and shall render such services with respect to the
Performing Serviced Mortgage Loans as are specifically provided for herein. All
references herein to the respective duties of the Master Servicer and the
Special Servicer, and to the areas in which they may exercise discretion, shall
be subject to Section 3.21.
(b) Subject to Sections 3.01(a), 3.20, 6.11, 6.12, 6.13, 6.14 and
6.15, the Master Servicer and the Special Servicer shall each have full power
and authority, acting alone (or, to the extent contemplated by Section 3.22 of
this Agreement, through subservicers), to do or cause to be done any and all
things in connection with the servicing and administration contemplated by
Section 3.01(a) that it may deem necessary or desirable. Without limiting the
generality of the foregoing, each of the Master Servicer and the Special
Servicer, in its own name, with respect to each of the Serviced Mortgage Loans
it is obligated to service hereunder, is hereby authorized and empowered by the
Trustee and each Serviced Non-Trust Mortgage Loan Noteholder to execute and
deliver, on behalf of the Certificateholders, the Trustee and the Serviced
Non-Trust Mortgage Loan Noteholders or any of them, (i) any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien created by any Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
(ii) in accordance with the Servicing Standard and subject to Sections 3.01(a),
3.20, 6.11, 6.12, 6.13, 6.14 and 6.15, any and all modifications, extensions,
waivers, amendments or consents to or with respect to any documents contained in
the related Mortgage File; (iii) any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge or of assignment, and
all other comparable instruments; and (iv) any
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and all instruments that such party may be required to execute on behalf of the
Trustee in connection with the defeasance of a Serviced Mortgage Loan as
contemplated in this Agreement. Subject to Section 3.10, the Trustee shall, at
the written request of the Master Servicer or the Special Servicer, promptly
execute any limited powers of attorney and other documents furnished by the
Master Servicer or the Special Servicer that are necessary or appropriate to
enable them to carry out their servicing and administrative duties hereunder;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer or the Special Servicer.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall, without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Master Servicer's or Special Servicer's, as applicable,
representative capacity; or (ii) take any action with the intent to cause, and
that actually causes, the Trustee to be registered to do business in any state.
(c) The parties hereto acknowledge that the 000 Xxxxx Xxxxxx Loan Pair
is subject to the terms and conditions of the 000 Xxxxx Xxxxxx Co-Lender
Agreement. The parties hereto further recognize the respective rights and
obligations of the 000 Xxxxx Xxxxxx Noteholders under the 000 Xxxxx Xxxxxx
Co-Lender Agreement, including with respect to: (i) the allocation of
collections on or in respect of the 000 Xxxxx Xxxxxx Loan Pair, and the making
of payments, to the 000 Xxxxx Xxxxxx Noteholders in accordance with Section 4.01
of the 000 Xxxxx Xxxxxx Co-Lender Agreement; (ii) the allocation of expenses and
losses relating to the 000 Xxxxx Xxxxxx Loan Pair to the 000 Xxxxx Xxxxxx
Noteholders in accordance with Section 4.01 of the 000 Xxxxx Xxxxxx Co-Lender
Agreement, (iii) the sharing of certain expenses in accordance with Section 4.04
of the 000 Xxxxx Xxxxxx Co-Lender Agreement and (iv) the purchase of the 000
Xxxxx Xxxxxx Trust Mortgage Loan by the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan
Noteholder or its designee in accordance with Section 4.02 of the 000 Xxxxx
Xxxxxx Co-Lender Agreement.
(d) The parties hereto acknowledge that the Somerset Collection Loan
Group is subject to the terms and conditions of the Somerset Collection
Co-Lender Agreement. The parties hereto further recognize the respective rights
and obligations of the Somerset Collection Noteholders under the Somerset
Collection Co-Lender Agreement, including with respect to: (i) the allocation of
collections on or in respect of the Somerset Collection Loan Group, and the
making of payments, to the Somerset Collection Noteholders in accordance with
Section 4.01 of the Somerset Collection Co-Lender Agreement, (ii) the allocation
of expenses and losses relating to the Somerset Collection Loan Group to the
Somerset Collection Noteholders in accordance with Section 4.02 of the Somerset
Collection Co-Lender Agreement, (iii) the sharing of certain expenses in
accordance with Section 4.05 of the Somerset Collection Co-Lender Agreement,
(iv) the purchase of the Somerset Collection Trust Mortgage Loan (together with
the Somerset Collection Pari Passu Non-Trust Mortgage Loan) by the Somerset
Collection Subordinate Non-Trust Mortgage Loan Noteholder or its designee in
accordance with Section 4.03 of the Somerset Collection Co-Lender Agreement, and
(v) the right of the Somerset Collection Subordinate Non-Trust Mortgage Loan
Noteholder or a designee thereof to cure certain events of default occurring
with respect to the Somerset Collection Pari Passu Mortgage Loans in accordance
with Sections 7.01 and 7.02 of the Somerset Collection Co-Lender Agreement.
(e) The parties hereto acknowledge that the Xxxxxxxx Place Loan Pair
is subject to the terms and conditions of the Xxxxxxxx Place Intercreditor
Agreement. The parties hereto further recognize the respective rights and
obligations of the Xxxxxxxx Place Noteholders under the Xxxxxxxx Place
Intercreditor Agreement, including with respect to: (i) the allocation of
collections on or in
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respect of the Xxxxxxxx Place Loan Pair, and the making of payments, to the
Xxxxxxxx Place Noteholders in accordance with Sections 3 and 4(a) of the
Xxxxxxxx Place Intercreditor Agreement, (ii) the allocation of expenses and
losses relating to the Xxxxxxxx Place Loan Pair to the Xxxxxxxx Place
Noteholders in accordance with Section 3 of the Xxxxxxxx Place Intercreditor
Agreement, (iii) the reduction, on each Due Date, of the principal balance of
the Mortgage Note representing the Xxxxxxxx Place Non-Trust Mortgage Loan in
connection with certain losses and expenses in accordance with Section 4(a) of
the Xxxxxxxx Place Intercreditor Agreement, (iv) the purchase of the Xxxxxxxx
Place Trust Mortgage Loan by the Xxxxxxxx Place Non-Trust Mortgage Loan
Noteholder or its designee in accordance with Section 7 of the Xxxxxxxx Place
Intercreditor Agreement, and (v) the right of the Xxxxxxxx Place Non-Trust
Mortgage Loan Majority Noteholder or a designee thereof to cure certain events
of default occurring with respect to the Xxxxxxxx Place Loan Pair in accordance
with Section 8 of the Xxxxxxxx Place Intercreditor Agreement.
(f) The parties hereto acknowledge that the Cumberland Place Loan Pair
is subject to the terms and conditions of the Cumberland Place Co-Lender
Agreement. The parties hereto further recognize the respective rights and
obligations of the Cumberland Place Noteholders under the Cumberland Place
Co-Lender Agreement, including with respect to: (i) the allocation of
collections on or in respect of the Cumberland Place Loan Pair in accordance
with Section 4.01 of the Cumberland Place Co-Lender Agreement, (ii) the making
of payments to the Cumberland Place Noteholders in accordance with Section 4.02
of the Cumberland Place Co-Lender Agreement, (iii) the purchase of the
Cumberland Place Trust Mortgage Loan by the Cumberland Place Non-Trust Mortgage
Loan Noteholder or its designee in accordance with Section 5.01 of the
Cumberland Place Co-Lender Agreement, and (v) the right of the Cumberland Place
Non-Trust Mortgage Loan Noteholder or a designee thereof to cure certain events
of default occurring with respect to the Cumberland Place Trust Mortgage Loan in
accordance with Sections 5.02 and 5.03 of the Cumberland Place Co-Lender
Agreement.
(g) With respect to any Serviced Loan Combination, in the event that
neither the related Serviced Combination Trust Mortgage Loan nor the related REO
Property is an asset of the Trust Fund and the servicing and administration of
such Serviced Loan Combination and any related REO Property are to be governed
by a separate servicing agreement and not by this Agreement, then (either (a)
with the consent or at the request of the holders of each Mortgage Loan
comprising such Serviced Loan Combination or (b) if expressly provided for in
the related Co-Lender Agreement) the Master Servicer and, if such Serviced Loan
Combination is then being specially serviced hereunder or the related Mortgaged
Property has become an REO Property, the Special Servicer, shall continue to act
in such capacities under such separate servicing agreement; provided that such
separate servicing agreement shall be reasonably acceptable to the Master
Servicer and/or the Special Servicer, as the case may be, and shall contain
servicing and administration, limitation of liability, indemnification and
servicing compensation provisions substantially similar to the corresponding
provisions of this Agreement, except for the fact that such Serviced Loan
Combination and the related Mortgaged Property shall be the sole assets serviced
and administered thereunder and the sole source of funds thereunder.
Further, with respect to any Serviced Loan Combination, if at any time
neither the related Trust Mortgage Loan nor any related REO Property is an asset
of the Trust Fund, and if a separate servicing agreement with respect to such
Serviced Loan Combination or any related REO Property, as applicable, has not
been entered into as contemplated by the related Co-Lender Agreement and the
prior
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paragraph (for whatever reason), and notwithstanding that neither the related
Trust Mortgage Loan nor any related REO Property is an asset of the Trust Fund,
then, unless directed otherwise by the then current holders of the Mortgage
Notes comprising such Serviced Loan Combination, the Master Servicer and, if
applicable, the Special Servicer shall continue to service and administer such
Serviced Loan Combination and/or any related REO Property, for the benefit of
the respective holders of such Loan Combination, under this Agreement as if such
Serviced Loan Combination or any related REO Property were the sole assets
subject hereto, with certain references in this Agreement applicable to the
Trust, the Trustee, the Certificates, the Certificateholders (or any subgroup
thereof) or any representative of any such Certificateholders, all being
construed to refer to such similar terms as are applicable to the then current
holder of the Mortgage Note for the related Trust Mortgage Loan.
(h) The parties hereto acknowledge that the GIC Office Loan Group is
subject to the terms and conditions of the GIC Office Co-Lender Agreement. The
parties hereto further recognize the respective rights and obligations of the
GIC Office Noteholders under the GIC Office Co-Lender Agreement, including with
respect to: (i) the allocation of collections on or in respect of the GIC Office
Loan Group, and the making of payments, to the GIC Office Noteholders in
accordance with Section 4.01 of the GIC Office Co-Lender Agreement; (ii) the
allocation of expenses and losses relating to the GIC Office Loan Group to the
GIC Office Noteholders in accordance with Section 4.02 of the GIC Office
Co-Lender Agreement; (iii) the sharing of certain expenses in accordance with
Section 4.05 of the GIC Office Co-Lender Agreement; (iv) the purchase of the GIC
Office Trust Mortgage Loan (together with the GIC Office Pari Passu Non-Trust
Mortgage Loans) by the GIC Office Subordinate Non-Trust Mortgage Loan Noteholder
or its designee in accordance with Section 4.03 of the GIC Office Co-Lender
Agreement; and (v) the right of the GIC Office Subordinate Non-Trust Mortgage
Loan Noteholder or its designee to cure certain events of default occurring with
respect to the GIC Office Trust Mortgage Loan (together with the GIC Office Pari
Passu Non-Trust Mortgage Loans) in accordance with Sections 7.01 and 7.02 of the
GIC Office Co-Lender Agreement. The parties hereto further acknowledge that the
GIC Office Loan Group is to be serviced and administered by the GIC Office
Servicers in accordance with the GIC Office Servicing Agreement, which term
includes any successor agreement contemplated under the GIC Office Co-Lender
Agreement, and none of the Master Servicer, the Trustee or any Fiscal Agent have
any obligation to make Servicing Advances with respect to the GIC Office Loan
Group.
(i) The Master Servicer shall use efforts consistent with the
Servicing Standard to have prepared, executed (with the cooperation of the
Depositor (in the case of a Xxxxxx Trust Mortgage Loan) and the UBS Mortgage
Loan Seller (in the case of a UBS Trust Mortgage Loan) in obtaining requisite
signatures, if applicable) and delivered by the applicable party (and included
in the Servicing File), not later than the later of (i) 30 days following the
Master Servicer's receipt of the subject franchisor comfort letter, guaranty of
payment or letter of credit and (ii) the expiration of the period that may be
required for such transfer or assignment pursuant to the terms of the applicable
franchisor comfort letter, guaranty of payment or letter of credit, if any, (A)
with respect to any Serviced Mortgage Loan secured by a hospitality property
(and with respect to which a franchise agreement constitutes part of the related
Mortgage File on the Closing Date), any original transfer or assignment
documents necessary to transfer or assign to the Trustee any rights under the
related franchisor comfort letter; and (B) with respect to any Serviced Mortgage
Loan that has a related guaranty or letter of credit that constitutes part of
the related Mortgage File on the Closing Date, any original transfer or
assignment documents necessary to transfer or assign to the Trustee any rights
under the related guaranty of payment or letter of credit. In the event, with
respect to a Serviced Trust Mortgage Loan with a related
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letter of credit, it is determined by the Master Servicer that a draw under such
letter of credit has become necessary under the terms thereof prior to the
assignment under clause (B) of the preceding sentence having been effected, the
Master Servicer shall direct (in writing) the Depositor (in the case of a Xxxxxx
Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust
Mortgage Loan) to make such draw or to cause such draw to be made on behalf of
the Trustee, and, the Depositor will, and the UBS Mortgage Loan Seller will be
obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, use its
best efforts to cause such draw to be made; provided that neither the Depositor
nor the UBS Mortgage Loan Seller shall have any liability in connection with the
determination to make, or the making of, such draw (other than to remit the
proceeds of such draw to the Master Servicer).
(j) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee, to the Non-Trust Mortgage Loan Noteholders and to each
other under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or agent.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer and the Special Servicer shall
undertake reasonable efforts to collect all payments required under the terms
and provisions of the Serviced Mortgage Loans it is obligated to service
hereunder and shall follow such collection procedures as are consistent with the
Servicing Standard; provided, however, that neither the Master Servicer nor the
Special Servicer shall, with respect to any Serviced Mortgage Loan that
constitutes an ARD Mortgage Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Additional Interest (other
than the making of requests for its collection), unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
ARD Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, necessary, appropriate and consistent with the Servicing Standard or
(ii) all other amounts due under such ARD Mortgage Loan have been paid, the
payment of such Additional Interest has not been forgiven in accordance with
Section 3.20 and, in the good faith and reasonable judgment of the Special
Servicer, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated interest accrued on Advances. The
Special Servicer shall ensure that, with respect to Specially Serviced Mortgage
Loans, the Mortgagors make payments directly to the Master Servicer; provided
that, in the event the Special Servicer receives a payment that should have been
made directly to the Master Servicer, the Special Servicer shall promptly
forward such payment to the Master Servicer. Upon receipt of any such payment
with respect to a Specially Serviced Mortgage Loan, the Master Servicer shall
promptly notify the Special Servicer, and the Special Servicer shall direct the
Master Servicer as to the proper posting of such payment. Consistent with the
foregoing, the Special Servicer, with regard to a Specially Serviced Mortgage
Loan, or the Master Servicer, with regard to a Performing Serviced Mortgage
Loan, may waive or defer any Default Charges in connection with collecting any
late payment on a Serviced Mortgage Loan; provided that without the consent of
the Special Servicer in the case of a proposed waiver by the Master Servicer, no
such waiver or deferral may be made by the Master Servicer pursuant to this
Section 3.02 if any Advance has been made as to such delinquent payment.
(b) All amounts Received by the Trust with respect to any
Cross-Collateralized Group in the form of payments from Mortgagors, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds, shall be applied by
the Master Servicer among the Trust Mortgage Loans
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constituting such Cross-Collateralized Group in accordance with the express
provisions of the related loan documents and, in the absence of such express
provisions or to the extent that such payments and other collections may be
applied at the discretion of the lender, on a pro rata basis in accordance with
the respective amounts then "due and owing" as to each such Mortgage Loan.
Except in the case of a Trust Mortgage Loan that is part of a Loan Combination,
amounts Received by the Trust in respect of or allocable to any particular Trust
Mortgage Loan (whether or not such Trust Mortgage Loan constitutes part of a
Cross-Collateralized Group) in the form of payments from Mortgagors, Liquidation
Proceeds, Condemnation Proceeds or Insurance Proceeds shall be applied to
amounts due and owing under such Trust Mortgage Loan (including for principal
and accrued and unpaid interest) in accordance with the express provisions of
the related Mortgage Note, the related Mortgage and/or any related loan
agreement and, in the absence of such express provisions or to the extent that
such payments and other collections may be applied at the discretion of the
lender, as follows: first, as a recovery of any related unpaid servicing
expenses and unreimbursed Servicing Advances; second, as a recovery of accrued
and unpaid interest on such Trust Mortgage Loan at the related Mortgage Rate to,
but not including, the date of receipt (or, in the case of a full Monthly
Payment from any Mortgagor, through the related Due Date), exclusive, however,
in the case of an ARD Trust Mortgage Loan after its Anticipated Repayment Date,
of any such accrued and unpaid interest that constitutes Additional Interest;
third, as a recovery of principal of such Trust Mortgage Loan then due and
owing, including by reason of acceleration of such Trust Mortgage Loan following
a default thereunder (or, if a Liquidation Event has occurred in respect of such
Trust Mortgage Loan, as a recovery of principal to the extent of its entire
remaining unpaid principal balance); fourth, unless a Liquidation Event has
occurred with respect to such Trust Mortgage Loan, as a recovery of amounts to
be currently applied to the payment of, or escrowed for the future payment of,
real estate taxes, assessments, insurance premiums (including premiums on any
Environmental Insurance Policy), ground rents (if applicable) and similar items;
fifth, unless a Liquidation Event has occurred with respect to such Trust
Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be
held in escrow; sixth, as a recovery of any Prepayment Premium or Yield
Maintenance Charge then due and owing under such Trust Mortgage Loan; seventh,
as a recovery of any Default Charges then due and owing under such Trust
Mortgage Loan; eighth, as a recovery of any assumption fees, modification fees
and extension fees then due and owing under such Trust Mortgage Loan; ninth, as
a recovery of any other amounts then due and owing under such Trust Mortgage
Loan (other than remaining unpaid principal and, in the case of an ARD Trust
Mortgage Loan after its Anticipated Repayment Date, other than Additional
Interest); tenth, as a recovery of any remaining principal of such Trust
Mortgage Loan to the extent of its entire remaining unpaid principal balance;
and, eleventh, in the case of an ARD Trust Mortgage Loan after its Anticipated
Repayment Date, as a recovery of accrued and unpaid Additional Interest on such
ARD Trust Mortgage Loan to but not including the date of receipt; provided that,
if one or more Advances previously made in respect of a Trust Mortgage Loan have
been reimbursed out of general collections of principal on the Mortgage Pool as
one or more Nonrecoverable Advances, then collections in respect of such Trust
Mortgage Loan available for application pursuant to clauses second through
eleventh of this sentence shall instead be applied in the following order--(i)
as a recovery of accrued and unpaid interest on, and principal of, such Trust
Mortgage Loan, to the extent of any outstanding P&I Advances and unpaid Master
Servicing Fees in respect of such Trust Mortgage Loan, (ii) as a recovery of the
item(s) for which such previously reimbursed Nonrecoverable Advance(s) were made
(together with, but only if a Liquidation Event has occurred with respect to
such Trust Mortgage Loan, any interest on such previously reimbursed
Nonrecoverable Advance(s) that was also paid out of general collections of
principal on the Mortgage Pool), and (iii) in accordance with clauses second
through eleventh of this sentence (taking into account the applications pursuant
to clauses (i) and (ii) of this proviso).
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All payments and other collections received with respect to the 000
Xxxxx Xxxxxx Mortgage Loans shall be allocated between those two Mortgage Loans
as provided in the 000 Xxxxx Xxxxxx Co-Lender Agreement. Such payments and other
collections so allocated to each 000 Xxxxx Xxxxxx Mortgage Loan shall be applied
to amounts due and owing under the 000 Xxxxx Xxxxxx Mortgage Loans (including
for principal and accrued and unpaid interest) in accordance with the express
provisions of the related Mortgage Note, the related Mortgage and/or the related
loan agreement and, in the absence of any such express provisions or to the
extent that such amounts may be applied at the discretion of the lender, in
accordance with the provisions of the preceding paragraph (treating the 000
Xxxxx Xxxxxx Non-Trust Mortgage Loan as a Trust Mortgage Loan solely for such
purpose); provided, that references to the recovery of any related unpaid
servicing expenses and unreimbursed Servicing Advances in clause first of the
preceding paragraph, with respect to each 000 Xxxxx Xxxxxx Mortgage Loan, shall
be deemed to refer to that 000 Xxxxx Xxxxxx Mortgage Loan's allocable share of
the related servicing expense and/or Servicing Advance, as applicable, allocated
thereto in accordance with the 000 Xxxxx Xxxxxx Co-Lender Agreement.
All amounts received with respect to any Serviced Loan Combination
(other than the 000 Xxxxx Xxxxxx Xxxx Xxxx) shall be applied to amounts due and
owing under the Mortgage Loans comprising such Loan Combination (including for
principal and accrued and unpaid interest) in accordance with the express
provisions of the related Mortgage Notes, the related Mortgage, the related loan
agreement, if any, and the related Co-Lender Agreement.
All amounts Received by the Trust with respect to the GIC Office Trust
Mortgage Loan shall be allocated among interest, principal and/or prepayment
consideration due thereon in accordance with the terms of any distribution date
statement or servicer report received from the GIC Office Servicers with respect
to the GIC Office Trust Mortgage Loan and, in the absence of any such statement
or report, in accordance with Section 4.01 of the GIC Office Co-Lender
Agreement.
(c) Promptly following the Closing Date, the Trustee shall send
written notice to the GIC Office Master Servicer, stating that, as of the
Closing Date, the Trustee is the holder of the GIC Office Trust Mortgage Loan
and directing the GIC Office Master Servicer to remit to the Master Servicer all
amounts payable to, and to forward, deliver or otherwise make available, as the
case may be, to the Master Servicer all reports, statements, documents,
communications and other information that are to be forwarded, delivered or
otherwise made available to, the holder of the GIC Office Trust Mortgage Loan
under the GIC Office Co-Lender Agreement and the GIC Office Servicing Agreement.
The Master Servicer shall, within one (1) Business Day of receipt thereof or as
otherwise required hereunder, deposit into the Pool Custodial Account all
amounts received by it from the GIC Office Master Servicer or any other party
under the GIC Office Servicing Agreement with respect to the GIC Office Trust
Mortgage Loan, the GIC Office Mortgaged Properties or any GIC Office REO
Property. In connection with the foregoing, the Master Servicer shall provide
the GIC Office Master Servicer wiring instructions for remittances to the Master
Servicer. In the event that, during any calendar month, the Master Servicer
fails to so receive any amounts due to the holder of the GIC Office Trust
Mortgage Loan under the GIC Office Co-Lender Agreement and the GIC Office
Servicing Agreement by the end of the related Collection Period ending in such
calendar month, then the Master Servicer shall promptly (i) notify the GIC
Office Master Servicer as well as the GIC Office Trustee that such amounts due
with respect to the GIC Office Trust Mortgage Loan or any GIC Office REO Trust
Mortgage Loan have not been received (specifying the amount of such deficiency),
(ii) make inquiry of the GIC Office Master Servicer and the GIC Office Trustee
(and, to the extent learned, inform the Trustee) as to the reason that such
amounts
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have not been timely received, (iii) as and to the extent appropriate, request
that the GIC Office Master Servicer promptly remedy such failure to make a
payment, and (iv) make a P&I Advance with respect to such amounts as and if
required by the terms of this Agreement in accordance with Section 4.03.
Further, in accordance with Section 4.03, in the event the Master Servicer fails
to make such P&I Advance with respect to the GIC Office Trust Mortgage Loan or
any GIC Office REO Trust Mortgage Loan, then the Trustee or, if it fails to do
so, any Fiscal Agent, shall make such P&I Advance.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Serviced Mortgage Loans,
establish and maintain one or more accounts (the "Servicing Accounts"), in which
all related Escrow Payments shall be deposited and retained; provided that, in
the case of a Serviced Loan Combination, if the related Servicing Account
includes funds with respect to any other Mortgage Loan, then the Master Servicer
shall maintain a separate sub-account of such Servicing Account that relates
solely to such Loan Combination. Subject to the terms of the related loan
documents, each Servicing Account shall be an Eligible Account. Withdrawals of
amounts so collected from a Servicing Account may be made (in each case, to the
extent of amounts on deposit therein in respect of the related Serviced Mortgage
Loan or, in the case of clauses (iv) and (v) below, to the extent of interest or
other income earned on such amounts) only for the following purposes: (i)
consistent with the related loan documents, to effect the payment of real estate
taxes, assessments, insurance premiums (including premiums on any Environmental
Insurance Policy), ground rents (if applicable) and comparable items in respect
of the respective Mortgaged Properties; (ii) insofar as the particular Escrow
Payment represents a late payment that was intended to cover an item described
in the immediately preceding clause (i) for which a Servicing Advance was made,
to reimburse the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent, as applicable, for such Servicing Advance; (iii) to refund to
Mortgagors any sums as may be determined to be overages; (iv) following an event
of default under the related Serviced Mortgage Loan, for such other purposes as
are consistent with the related loan documents, applicable law and the Servicing
Standard; (v) to pay interest, if required and as described below, to Mortgagors
on balances in such Servicing Account; (vi) to pay the Master Servicer interest
and investment income on balances in such Servicing Account as described in
Section 3.06, if and to the extent not required by law or the terms of the
related loan documents to be paid to the Mortgagor; or (vii) to clear and
terminate such Servicing Account at the termination of this Agreement in
accordance with Section 9.01. To the extent permitted by law or the applicable
loan documents, funds in the Servicing Accounts may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall pay or cause to be paid to the Mortgagors interest, if
any, earned on the investment of funds in the related Servicing Accounts, if
required by law or the terms of the related Serviced Mortgage Loan. If the
Master Servicer shall deposit in a Servicing Account any amount not required to
be deposited therein, it may at any time withdraw such amount from such
Servicing Account, any provision herein to the contrary notwithstanding.
(b) The Master Servicer shall, as to each and every Serviced Mortgage
Loan, (i) maintain accurate records with respect to the related Mortgaged
Property reflecting the status of real estate taxes, assessments and other
similar items that are or may become a lien thereon and the status of insurance
premiums and any ground rents payable in respect thereof and (ii) use reasonable
efforts to obtain, from time to time, all bills for (or otherwise confirm) the
payment of such items (including renewal premiums) and, if the subject Serviced
Mortgage Loan requires the related Mortgagor to escrow
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for such items, shall effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment for which it is
responsible, the Master Servicer shall apply Escrow Payments as allowed under
the terms of the related Serviced Mortgage Loan (or, if such Serviced Mortgage
Loan does not require the related Mortgagor to escrow for the payment of real
estate taxes, assessments, insurance premiums, ground rents (if applicable) and
similar items, the Master Servicer shall use reasonable efforts consistent with
the Servicing Standard to cause the related Mortgagor to comply with the
requirement of the related Mortgage that the Mortgagor make payments in respect
of such items at the time they first become due and, in any event, prior to the
institution of foreclosure or similar proceedings with respect to the related
Mortgaged Property for nonpayment of such items). Subject to Section 3.11(h),
the Master Servicer shall timely make a Servicing Advance to cover any such item
which is not so paid, including any penalties or other charges arising from the
Mortgagor's failure to timely pay such items.
(c) The Master Servicer shall, as to each and every Serviced Mortgage
Loan, make a Servicing Advance with respect to the related Mortgaged Property in
an amount equal to all such funds as are necessary for the purpose of effecting
the payment of (i) real estate taxes, assessments and other similar items, (ii)
ground rents (if applicable), and (iii) premiums on Insurance Policies
(including Environmental Insurance Policies), in each instance if and to the
extent Escrow Payments (if any) collected from the related Mortgagor are
insufficient to pay such item when due and the related Mortgagor (or any related
guarantor or party entitled to exercise cure rights) has failed to pay such item
on a timely basis. All such Servicing Advances shall be reimbursable in the
first instance from related payments by or on behalf of the Mortgagors, and
further as provided in Section 3.05(a), Section 3.05A Section 3.05B, Section
3.05C and/or Section 3.05D. No costs incurred by the Master Servicer in
effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of the Mortgaged Properties shall, for purposes of
this Agreement, including the Trustee's calculation of monthly distributions to
Certificateholders, be added to the unpaid Stated Principal Balances of the
related Serviced Mortgage Loans, notwithstanding that the terms of such Mortgage
Loans so permit. The foregoing shall in no way limit the Master Servicer's
ability to charge and collect from the Mortgagor such costs together with
interest thereon.
(d) The Master Servicer shall, as to all Serviced Mortgage Loans,
establish and maintain, as applicable, one or more accounts (the "Reserve
Accounts"), into which all related Reserve Funds, if any, shall be deposited and
retained; provided that, in the case of a Serviced Loan Combination, if the
related Reserve Account includes funds with respect to any other Mortgage Loan,
then the Master Servicer shall maintain a separate sub-account of such Reserve
Account that relates solely to such Loan Combination. Withdrawals of amounts so
deposited may be made (i) for the specific purposes for which the particular
Reserve Funds were delivered, in accordance with the Servicing Standard and the
terms of the related Mortgage Note, Mortgage and any other agreement with the
related Mortgagor governing such Reserve Funds, (ii) to pay the Master Servicer
interest and investment income earned on amounts in the Reserve Accounts as
described below, and (iii) following an event of default under the related
Serviced Mortgage Loan, for such other purposes as are consistent with the
related loan documents, applicable law and the Servicing Standard. To the extent
permitted in the applicable loan documents, funds in the Reserve Accounts may be
invested in Permitted Investments in accordance with the provisions of Section
3.06. Subject to the related loan documents, all Reserve Accounts shall be
Eligible Accounts. Consistent with the Servicing Standard, the Master Servicer
may waive or extend the date set forth in any agreement governing Reserve Funds
by which any required repairs, capital improvements and/or environmental
remediation at the related Mortgaged Property must
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be completed; provided that any waiver, any extension for more than 120 days and
any subsequent extension may only be granted with the consent of the Special
Servicer.
SECTION 3.04. Pool Custodial Account, Defeasance Deposit Account,
Collection Account, Interest Reserve Account and Excess
Liquidation Proceeds Account.
(a) The Master Servicer shall establish and maintain one or more
separate accounts (collectively, the "Pool Custodial Account"), in which the
amounts described in clauses (i) through (x) below (which shall not include any
amounts allocable to the Non-Trust Mortgage Loans) shall be deposited and held
on behalf of the Trustee in trust for the benefit of the Certificateholders. The
Pool Custodial Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited in the Pool Custodial Account, within one (1)
Business Day of receipt (in the case of payments by Mortgagors or other
collections on the Trust Mortgage Loans) or as otherwise required hereunder, the
following payments and collections received (including amounts Received by the
Trust with respect to the GIC Office Trust Mortgage Loan) or made by the Master
Servicer or on its behalf subsequent to the Cut-off Date (other than in respect
of principal and interest on the Trust Mortgage Loans due and payable on or
before the Cut-off Date, which amounts shall be delivered promptly to the
Depositor or its designee, with negotiable instruments endorsed as necessary and
appropriate without recourse, and other than amounts required to be deposited in
the Defeasance Deposit Account), or any of the following payments (other than
Principal Prepayments) received by it on or prior to the Cut-off Date but
allocable to a period subsequent thereto:
(i) all payments on account of principal of the Serviced Trust
Mortgage Loans, including Principal Prepayments, and regardless of whether
those payments are made by the related Mortgagor, any related guarantor or
any party exercising cure rights under any related co-lender, intercreditor
or similar agreement, out of any related Reserve Funds maintained for such
purpose, out of collections on any related Defeasance Collateral or from
any other source;
(ii) all payments on account of interest on the Serviced Trust
Mortgage Loans, including Default Interest and Additional Interest, and
regardless of whether those payments are made by the related Mortgagor, any
related guarantor or any party exercising cure rights under any related
co-lender, intercreditor or similar agreement, out of any related Reserve
Funds maintained for such purpose, out of collections on any related
Defeasance Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges received in respect of any Serviced Trust Mortgage Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of any Serviced Trust Mortgage
Loan or, except to the extent such proceeds are to first be deposited in an
REO Account, any Administered REO Property;
(v) any amounts representing a reimbursement, payment and/or
contribution due and owing to the Trust from any Non-Trust Mortgage Loan
Noteholder in accordance with the related Co-Lender Agreement;
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(vi) all remittances to the Trust under the GIC Office Servicing
Agreement and/or the GIC Office Co-Lender Agreement with respect to the GIC
Office Trust Mortgage Loan or any GIC Office REO Property;
(vii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Pool Custodial Account;
(viii) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in connection
with losses on the Mortgage Pool resulting from a deductible clause in a
blanket or master force placed hazard insurance policy;
(ix) any amounts required to be transferred from the 000 Xxxxx
Xxxxxx Custodial Account pursuant to Section 3.05A, the Somerset Collection
Custodial Account pursuant to Section 3.05B, the Xxxxxxxx Place Custodial
Account pursuant to Section 3.05C, the Cumberland Place Custodial Account
pursuant to Section 3.05D or the Pool REO Account pursuant to Section
3.16(c); and
(x) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor with respect to a Serviced Trust Mortgage Loan
specifically to cover items for which a Servicing Advance has been made;
provided that any amounts described in clauses (i) through (v), (viii) and (x)
above that relate to a Serviced Combination Trust Mortgage Loan or any successor
REO Trust Mortgage Loan with respect thereto (other than Liquidation Proceeds
derived from the sale of such Trust Mortgage Loan to or through a related
Non-Trust Mortgage Loan Noteholder pursuant to the related Co-Lender Agreement,
the purchase of such Trust Mortgage Loan or the Trust's interest in any related
REO Property by the Depositor in connection with a Material Breach or a Material
Document Defect pursuant to Section 2.03 or, if applicable, the sale of such
Trust Mortgage Loan as a Defaulted Trust Mortgage Loan pursuant to Section 3.18)
shall be deposited in the applicable Loan Combination Custodial Account, and, in
any such case, shall thereafter be transferred to the Pool Custodial Account as
provided in Section 3.05A, Section 3.05B, Section 3.05C or Section 3.05D, as
applicable, together with any other amounts required to be transferred from such
Loan Combination Custodial Account to the Pool Custodial Account from time to
time pursuant to Section 3.05A, Section 3.05B, Section 3.05C, Section 3.05D, as
applicable.
The foregoing requirements for deposit in the Pool Custodial Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing a Mortgagor's payment of costs
and expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary statements or demands, amounts collected
for checks returned for insufficient funds and any similar fees (other than
Prepayment Consideration) not expressly referred to in the prior paragraph need
not be deposited by the Master Servicer in the Pool Custodial Account. If the
Master Servicer shall deposit in the Pool Custodial Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Pool Custodial Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer, as additional special servicing compensation in accordance with
Section 3.11(d), all assumption fees and assumption application fees (or the
applicable portions thereof), and other transaction fees received by the Master
Servicer to which the Special Servicer is entitled pursuant to such section upon
receipt of a
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written statement (on which the Master Servicer is entitled to rely) of a
Servicing Officer of the Special Servicer describing the item and amount (unless
pursuant to this Agreement it is otherwise clear that the Special Servicer is
entitled to such amounts, in which case a written statement is not required).
The Pool Custodial Account shall be maintained as a segregated account, separate
and apart from trust funds created for mortgage-backed securities of other
series and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (x) of the second preceding paragraph with respect to any Serviced
Trust Mortgage Loan (other than a Serviced Combination Trust Mortgage Loan), the
Special Servicer shall promptly, but in no event later than two (2) Business
Days after receipt, remit such amounts to the Master Servicer for deposit into
the Pool Custodial Account in accordance with the second preceding paragraph,
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item should not be deposited because of a restrictive
endorsement or other appropriate reason. With respect to any such amounts paid
by check to the order of the Special Servicer, the Special Servicer shall
endorse such check to the order of the Master Servicer, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement or
other appropriate reason. Any such amounts received by the Special Servicer with
respect to an Administered REO Property (other than an Administered REO Property
that relates to a Serviced Loan Combination) shall be deposited by the Special
Servicer into the Pool REO Account and thereafter remitted to the Master
Servicer for deposit into the Pool Custodial Account as and to the extent
provided in Section 3.16(c).
If and when any Mortgagor under a Defeasance Mortgage Loan (other than
the GIC Office Trust Mortgage Loan) elects to defease all or any part of its
Serviced Mortgage Loan and, pursuant to the provisions of the related loan
documents, delivers cash to the Master Servicer to purchase the required
Defeasance Collateral, the Master Servicer shall establish and maintain one or
more separate segregated accounts (collectively, the "Defeasance Deposit
Account"), in which the Master Servicer shall deposit such cash within one (1)
Business Day of receipt by the Master Servicer. The Master Servicer shall retain
such cash in the Defeasance Deposit Account pending its prompt application to
purchase Defeasance Collateral. The Master Servicer shall hold such cash and
maintain the Defeasance Deposit Account on behalf of the Trustee and, in the
case of a Serviced Loan Combination, the related Non-Trust Mortgage Loan
Noteholder(s), to secure payment on the related Defeasance Mortgage Loan. The
Defeasance Deposit Account shall be an Eligible Account. To the extent permitted
by law or the applicable Defeasance Mortgage Loan, prior to the purchase of
Defeasance Collateral, funds in the Defeasance Deposit Account may be invested
only in Permitted Investments in accordance with the provisions of Section 3.06.
The Master Servicer shall pay or cause to be paid to the related Mortgagor(s)
interest, if any, earned on the investment of funds in the Defeasance Deposit
Account, if required by law or the terms of the related Defeasance Mortgage
Loan(s).
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Collection Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the Collection
Account shall be an Eligible Account. The Trustee shall establish and maintain,
on a book-entry basis, the Class V Sub-Account, which sub-account shall be
deemed to be held in trust for the benefit of the Holders of the Class V
Certificates. The Master Servicer shall deliver to the Trustee each month on or
before the Trust Master Servicer Remittance Date therein, for deposit in the
Collection Account, an aggregate amount of immediately available funds equal to
the Master
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Servicer Remittance Amount for such Trust Master Servicer Remittance Date,
together with, in the case of the Final Distribution Date, any additional
amounts contemplated by the second paragraph of Section 9.01. Immediately upon
deposit of the Master Servicer Remittance Amount for any Trust Master Servicer
Remittance Date into the Collection Account, any portion thereof that represents
Additional Interest shall be deemed to have been deposited into the Class V
Sub-Account.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee (without duplication) for deposit in the
Collection Account:
(i) any P&I Advances required to be made by the Master Servicer
in accordance with Section 4.03(a); and
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls.
The Trustee shall, upon receipt, deposit in the Collection Account any
and all amounts received by it that are required by the terms of this Agreement
to be deposited therein. In addition, as and when required pursuant to Section
3.06, the Trustee shall (in all cases prior to distributions on the Certificates
being made on the related Distribution Date) deposit in the Collection Account
any amounts required to be so deposited by the Trustee pursuant to Section 3.06
in connection with losses incurred with respect to Permitted Investments of
funds held in the Collection Account.
In the event that the Master Servicer fails, on any Trust Master
Servicer Remittance Date, to remit to the Trustee any amount(s) required to be
so remitted to the Trustee hereunder by such date, the Master Servicer shall pay
the Trustee, for the account of the Trustee, interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from and including that Trust
Master Servicer Remittance Date, to but not including the related Distribution
Date.
On the Trust Master Servicer Remittance Date in March of each year
(commencing in March 2005), the Trustee shall transfer from the Interest Reserve
Account to the Collection Account all Interest Reserve Amounts then on deposit
in the Interest Reserve Account with respect to the Interest Reserve Mortgage
Loans and any Interest Reserve REO Mortgage Loans.
As and when required pursuant to Section 3.05(d), the Trustee shall
transfer monies from the Excess Liquidation Proceeds Account to the Collection
Account.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account"), to be held in trust for the
benefit of the Certificateholders, for purposes of holding the Interest Reserve
Amounts in respect of the Interest Reserve Mortgage Loans and any Interest
Reserve REO Mortgage Loans. Each account that constitutes the Interest Reserve
Account shall be an Eligible Account. On each Distribution Date in February and,
during a year that is not a leap year, in January, prior to any distributions
being made in respect of the Certificates on such Distribution Date, the Trustee
shall withdraw from the Collection Account and deposit in the Interest Reserve
Account with respect to each Interest Reserve Mortgage Loan and Interest Reserve
REO Mortgage Loan, an amount equal to the Interest Reserve Amount, if any, in
respect of such Mortgage Loan or REO Mortgage Loan, as the case may be, for such
Distribution Date; provided that no such transfer of funds shall occur if the
subject Distribution Date is the Final Distribution Date. In addition, as and
when required pursuant to Section 3.06, the Trustee shall (in any event prior to
any distributions on the
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Certificates and any transfers to the Collection Account on or before the
related Distribution Date) deposit in the Interest Reserve Account any amounts
required to be so deposited by the Trustee pursuant to Section 3.06 in
connection with losses incurred with respect to Permitted Investments of funds
held in the Interest Reserve Account. Subject to the next paragraph, the
Interest Reserve Account may be a sub-account of the Collection Account.
Notwithstanding that the Interest Reserve Account may be a sub-account
of the Collection Account for reasons of administrative convenience, the
Interest Reserve Account and the Collection Account shall, for all purposes of
this Agreement (including the obligations and responsibilities of the Trustee
hereunder), be considered to be and shall be required to be treated as, separate
and distinct accounts. The Trustee shall indemnify and hold harmless the Trust
Fund against any losses arising out of the failure by the Trustee to perform its
duties and obligations hereunder as if such accounts were separate accounts. The
provisions of this paragraph shall survive any resignation or removal of the
Trustee and appointment of a successor trustee.
(d) If any Excess Liquidation Proceeds are received on the Mortgage
Pool, the Trustee shall establish and maintain one or more accounts
(collectively, the "Excess Liquidation Proceeds Account") to be held in trust
for the benefit of the Certificateholders, for purposes of holding such Excess
Liquidation Proceeds. Each account that constitutes the Excess Liquidation
Proceeds Account shall be an Eligible Account. On each Trust Master Servicer
Remittance Date, the Master Servicer shall withdraw from the Pool Custodial
Account and remit to the Trustee for deposit in the Excess Liquidation Proceeds
Account all Excess Liquidation Proceeds received with respect to the Mortgage
Pool during the Collection Period ending in the calendar month in which such
Trust Master Servicer Remittance Date occurs. In addition, as and when required
pursuant to Section 3.06, the Trustee shall (in any event prior to any transfers
to the Collection Account on or before the related Distribution Date) deposit in
the Excess Liquidation Proceeds Account any amounts required to be so deposited
by the Trustee pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Excess Liquidation
Proceeds Account. Subject to the next paragraph, the Excess Liquidation Proceeds
Account may be a sub-account of the Collection Account.
Notwithstanding that the Excess Liquidation Proceeds Account may be a
sub-account of the Collection Account for reasons of administrative convenience,
the Excess Liquidation Proceeds Account and the Collection Account shall, for
all purposes of this Agreement (including the obligations and responsibilities
of the Trustee hereunder), be considered to be and shall be required to be
treated as, separate and distinct accounts. The Trustee shall indemnify and hold
harmless the Trust Fund against any losses arising out of the failure by the
Trustee to perform its duties and obligations hereunder as if such accounts were
separate accounts. The provisions of this paragraph shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
(e) Funds in the Pool Custodial Account, the Collection Account, the
Interest Reserve Account and the Excess Liquidation Proceeds Account may be
invested only in Permitted Investments in accordance with the provisions of
Section 3.06. The Master Servicer shall give notice to the Trustee, the Special
Servicer and the Rating Agencies of the location of the Pool Custodial Account
as of the Closing Date and of the new location of the Pool Custodial Account
prior to any change thereof. As of the Closing Date, the Collection Account, the
Interest Reserve Account and the Excess Liquidation Proceeds Account shall be
located at the Trustee's Corporate Trust Office. The Trustee shall give notice
to the Master Servicer, the Special Servicer and the Rating Agencies of any
change in the location of the
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Collection Account, the Interest Reserve Account or the Excess Liquidation
Proceeds Account prior to any change thereof.
SECTION 3.04A. 000 Xxxxx Xxxxxx Custodial Account.
(a) The Master Servicer shall establish and maintain, with respect to
the 000 Xxxxx Xxxxxx Loan Pair, one or more separate accounts (collectively, the
"666 Fifth Avenue Custodial Account") in which the amounts described in clauses
(i) through (ix) below shall be deposited and held in trust for the benefit of
the 000 Xxxxx Xxxxxx Noteholders, as their interests may appear; provided that,
subject to the last paragraph of this Section 3.04A(a), a 000 Xxxxx Xxxxxx
Custodial Account may be a sub-account of the Pool Custodial Account. The 000
Xxxxx Xxxxxx Custodial Account shall be an Eligible Account or, subject to the
last paragraph of this Section 3.04A(a), a sub-account of an Eligible Account.
The Master Servicer shall deposit or cause to be deposited in the 000 Xxxxx
Xxxxxx Custodial Account, within one (1) Business Day of receipt (in the case of
payments or other collections on the 000 Xxxxx Xxxxxx Xxxx Xxxx) or as otherwise
required hereunder, the following payments and collections received or made by
the Master Servicer or on its behalf with respect to the 000 Xxxxx Xxxxxx Loan
Pair subsequent to the Cut-off Date (other than in respect of principal and
interest on the 000 Xxxxx Xxxxxx Loan Pair due and payable on or before the
Cut-off Date, which payments shall be held pursuant to the terms of the 000
Xxxxx Xxxxxx Co-Lender Agreement, and other than amounts required to be
deposited in the Defeasance Deposit Account):
(i) all payments on account of principal of the 000 Xxxxx Xxxxxx Loan
Pair, including Principal Prepayments, and regardless of whether those
payments are made by the related Mortgagor, any related guarantor or any
party exercising cure rights under any related mezzanine intercreditor
agreement, out of any related Reserve Funds maintained for such purpose,
out of collections on any related Defeasance Collateral or from any other
source;
(ii) all payments on account of interest on the 000 Xxxxx Xxxxxx Loan
Pair, including Default Interest, and regardless of whether those payments
are made by the related Mortgagor, any related guarantor, or any party
exercising cure rights under any related mezzanine intercreditor agreement,
out of any related Reserve Funds maintained for such purpose, out of
collections on any related Defeasance Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance Charges and/or late
payment charges received in respect of the 000 Xxxxx Xxxxxx Loan Pair;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of the 000 Xxxxx Xxxxxx Loan Pair (other than
Liquidation Proceeds derived from the purchase of the 000 Xxxxx Xxxxxx
Trust Mortgage Loan by or through the 000 Xxxxx Xxxxxx Non-Trust Mortgage
Loan Noteholder pursuant to the 000 Xxxxx Xxxxxx Co-Lender Agreement, the
purchase of the 000 Xxxxx Xxxxxx Trust Mortgage Loan or the Trust's
interest in any related REO Property by the Depositor in connection with a
Material Breach or a Material Document Defect pursuant to Section 2.03 or
the sale of the 000 Xxxxx Xxxxxx Trust Mortgage Loan as a Defaulted Trust
Mortgage Loan pursuant to Section 3.18);
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the 000 Xxxxx Xxxxxx Custodial
Account;
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(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
with respect to the 000 Xxxxx Xxxxxx Loan Pair resulting from a deductible
clause in a blanket or master force placed hazard insurance policy;
(vii) any amounts required to be transferred from the 000 Xxxxx Xxxxxx
REO Account pursuant to Section 3.16(c);
(viii) insofar as they do not constitute Escrow Payments, any amounts
paid by the related Mortgagor with respect to the 000 Xxxxx Xxxxxx Loan
Pair specifically to cover items for which a Servicing Advance has been
made; and
(ix) any amounts representing a reimbursement, payment and/or
contribution due and owing to a party other than the Trust from any 000
Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholder in accordance with the 000
Xxxxx Xxxxxx Co-Lender Agreement.
The foregoing requirements for deposit in the 000 Xxxxx Xxxxxx
Custodial Account shall be exclusive. Notwithstanding the foregoing, actual
payments from the related Mortgagor in respect of the 000 Xxxxx Xxxxxx Loan Pair
in the nature of Escrow Payments, Reserve Funds, assumption fees, assumption
application fees, funds representing such Mortgagor's payment of costs and
expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary statements or demands, amounts collected
for checks returned for insufficient funds and any similar fees to which the
Master Servicer or Special Servicer is entitled as additional servicing
compensation and that are not expressly referred to in the prior paragraph, need
not be deposited by the Master Servicer in the 000 Xxxxx Xxxxxx Custodial
Account. If the Master Servicer shall deposit into the 000 Xxxxx Xxxxxx
Custodial Account any amount not required to be deposited therein, then it may
at any time withdraw such amount from such Custodial Account, any provision
herein to the contrary notwithstanding. The Master Servicer shall promptly
deliver to the Special Servicer, as additional special servicing compensation in
accordance with Section 3.11(d), all assumption fees and assumption application
fees (or the applicable portions thereof) and other transaction fees received by
the Master Servicer with respect to the 000 Xxxxx Xxxxxx Loan Pair, to which the
Special Servicer is entitled pursuant to such section, upon receipt of a written
statement of a Servicing Officer of the Special Servicer describing the item and
amount (unless pursuant to this Agreement it is otherwise clear that the Special
Servicer is entitled to such amounts, in which case a written statement is not
required). The 000 Xxxxx Xxxxxx Custodial Account shall be maintained as a
segregated account, separate and apart from trust funds created for
mortgage-backed securities of other series and the other accounts of the Master
Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (viii) and (ix) of the second preceding paragraph with respect to the 000
Xxxxx Xxxxxx Loan Pair, the Special Servicer shall promptly, but in no event
later than two (2) Business Days after receipt, remit such amounts to the Master
Servicer for deposit into the 000 Xxxxx Xxxxxx Custodial Account in accordance
with the second preceding paragraph, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item should not be
deposited because of a restrictive endorsement or other appropriate reason. With
respect to any such amounts paid by check to the order of the Special Servicer,
the Special Servicer shall endorse such check to the order of the Master
Servicer, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement or other appropriate reason. Any such amounts received
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by the Special Servicer with respect to an REO Property that relates to the 000
Xxxxx Xxxxxx Loan Pair shall initially be deposited by the Special Servicer into
the 000 Xxxxx Xxxxxx REO Account and thereafter remitted to the Master Servicer
for deposit into the 000 Xxxxx Xxxxxx Custodial Account, all in accordance with
Section 3.16(c).
Notwithstanding that the 000 Xxxxx Xxxxxx Custodial Account may be a
sub-account of the Pool Custodial Account for reasons of administrative
convenience, the 000 Xxxxx Xxxxxx Custodial Account and the Pool Custodial
Account shall, for all purposes of this Agreement (including the obligations and
responsibilities of the Master Servicer hereunder), be considered to be and
shall be required to be treated as, separate and distinct accounts. The Master
Servicer shall indemnify and hold harmless the Trust Fund and the 000 Xxxxx
Xxxxxx Non-Trust Mortgage Loan Noteholders against any losses arising out of the
failure by the Master Servicer to perform its duties and obligations hereunder
as if such accounts were separate accounts. The provisions of this paragraph
shall survive any resignation or removal of the Master Servicer and appointment
of a successor master servicer.
(b) If and when the related Mortgagor elects to defease the 000 Xxxxx
Xxxxxx Loan Pair or any portion thereof, the provisions of the last paragraph of
Section 3.04(a) relating to the Defeasance Deposit Account shall apply.
(c) The Master Servicer shall give notice to the Trustee, the 000
Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholders and the Special Servicer of the
location of the 000 Xxxxx Xxxxxx Custodial Account when first established and of
the new location of the 000 Xxxxx Xxxxxx Custodial Account prior to any change
thereof.
SECTION 3.04B. Somerset Collection Custodial Account.
(a) The Master Servicer shall establish and maintain, with respect to
the Somerset Collection Loan Group, one or more separate accounts (collectively,
the "Somerset Collection Custodial Account") in which the amounts described in
clauses (i) through (ix) below shall be deposited and held in trust for the
benefit of the Somerset Collection Noteholders, as their interests may appear;
provided that, subject to the last paragraph of this Section 3.04B(a), a
Somerset Collection Custodial Account may be a sub-account of the Pool Custodial
Account. The Somerset Collection Custodial Account shall be an Eligible Account
or, subject to the last paragraph of this Section 3.04B(a), a sub-account of an
Eligible Account. The Master Servicer shall deposit or cause to be deposited in
the Somerset Collection Custodial Account, within one (1) Business Day of
receipt (in the case of payments or other collections on the Somerset Collection
Loan Group) or as otherwise required hereunder, the following payments and
collections received or made by the Master Servicer or on its behalf with
respect to the Somerset Collection Loan Group subsequent to the Cut-off Date
(other than in respect of principal and interest on the Somerset Collection Loan
Group due and payable on or before the Cut-off Date, which payments shall be
held pursuant to the terms of the Somerset Collection Co-Lender Agreement, and
other than amounts required to be deposited in the Defeasance Deposit Account):
(i) all payments on account of principal of the Somerset Collection
Loan Group, including Principal Prepayments, and regardless of whether
those payments are made by the related Mortgagor, any related guarantor, or
any party exercising cure rights under the Somerset Collection Co-Lender
Agreement or any related mezzanine intercreditor agreement, out of any
related Reserve Funds maintained for such purpose, out of collections on
any related Defeasance Collateral or from any other source;
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(ii) all payments on account of interest on the Somerset Collection
Loan Group, including Default Interest, and regardless of whether those
payments are made by the related Mortgagor, any related guarantor, or any
party exercising cure rights under the Somerset Collection Co-Lender
Agreement or any related mezzanine intercreditor agreement, out of any
related Reserve Funds maintained for such purpose, out of collections on
any related Defeasance Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance Charges and/or late
payment charges received in respect of the Somerset Collection Loan Group;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of the Somerset Collection Loan Group (other
than Liquidation Proceeds derived from the purchase of the Somerset
Collection Trust Mortgage Loan by or through the Somerset Collection
Subordinate Non-Trust Mortgage Loan Noteholder pursuant to the Somerset
Collection Co-Lender Agreement, the purchase of the Somerset Collection
Trust Mortgage Loan or the Trust's interest in any related REO Property by
the Depositor in connection with a Material Breach or a Material Document
Defect pursuant to Section 2.03 or the sale of the Somerset Collection
Trust Mortgage Loan as a Defaulted Trust Mortgage Loan pursuant to Section
3.18);
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Somerset Collection Custodial
Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
with respect to the Somerset Collection Loan Group resulting from a
deductible clause in a blanket or master force placed hazard insurance
policy;
(vii) any amounts required to be transferred from the Somerset
Collection REO Account pursuant to Section 3.16(c);
(viii) insofar as they do not constitute Escrow Payments, any amounts
paid by the related Mortgagor with respect to the Somerset Collection Loan
Group specifically to cover items for which a Servicing Advance has been
made; and
(ix) any amounts representing a reimbursement, payment and/or
contribution due and owing to a party other than the Trust from any
Somerset Collection Non-Trust Mortgage Loan Noteholder in accordance with
the Somerset Collection Co-Lender Agreement.
The foregoing requirements for deposit in the Somerset Collection
Custodial Account shall be exclusive. Notwithstanding the foregoing, actual
payments from the related Mortgagor in respect of the Somerset Collection Loan
Group in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing such Mortgagor's payment of
costs and expenses associated with assumptions and defeasance, modification
fees, extension fees, charges for beneficiary statements or demands, amounts
collected for checks returned for insufficient funds and any similar fees to
which the Master Servicer or Special Servicer is entitled as additional
servicing compensation and that are not expressly referred to in the prior
paragraph, need not be deposited by the
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Master Servicer in the Somerset Collection Custodial Account. If the Master
Servicer shall deposit into the Somerset Collection Custodial Account any amount
not required to be deposited therein, then it may at any time withdraw such
amount from such Custodial Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer, as additional special servicing compensation in accordance with
Section 3.11(d), all assumption fees and assumption application fees (or the
applicable portions thereof) and other transaction fees received by the Master
Servicer with respect to the Somerset Collection Loan Group, to which the
Special Servicer is entitled pursuant to such section, upon receipt of a written
statement of a Servicing Officer of the Special Servicer describing the item and
amount (unless pursuant to this Agreement it is otherwise clear that the Special
Servicer is entitled to such amounts, in which case a written statement is not
required). The Somerset Collection Custodial Account shall be maintained as a
segregated account, separate and apart from trust funds created for
mortgage-backed securities of other series and the other accounts of the Master
Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (viii) and (ix) of the second preceding paragraph with respect to the
Somerset Collection Loan Group, the Special Servicer shall promptly, but in no
event later than two (2) Business Days after receipt, remit such amounts to the
Master Servicer for deposit into the Somerset Collection Custodial Account in
accordance with the second preceding paragraph, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
should not be deposited because of a restrictive endorsement or other
appropriate reason. With respect to any such amounts paid by check to the order
of the Special Servicer, the Special Servicer shall endorse such check to the
order of the Master Servicer, unless the Special Servicer determines, consistent
with the Servicing Standard, that a particular item cannot be so endorsed and
delivered because of a restrictive endorsement or other appropriate reason. Any
such amounts received by the Special Servicer with respect to an REO Property
that relates to the Somerset Collection Loan Group shall initially be deposited
by the Special Servicer into the Somerset Collection REO Account and thereafter
remitted to the Master Servicer for deposit into the Somerset Collection
Custodial Account, all in accordance with Section 3.16(c).
Notwithstanding that the Somerset Collection Custodial Account may be
a sub-account of the Pool Custodial Account for reasons of administrative
convenience, the Somerset Collection Custodial Account and the Pool Custodial
Account shall, for all purposes of this Agreement (including the obligations and
responsibilities of the Master Servicer hereunder), be considered to be and
shall be required to be treated as, separate and distinct accounts. The Master
Servicer shall indemnify and hold harmless the Trust Fund and the Somerset
Collection Non-Trust Mortgage Loan Noteholders against any losses arising out of
the failure by the Master Servicer to perform its duties and obligations
hereunder as if such accounts were separate accounts. The provisions of this
paragraph shall survive any resignation or removal of the Master Servicer and
appointment of a successor master servicer.
(b) If and when the related Mortgagor elects to defease the Somerset
Collection Loan Group or any portion thereof, the provisions of the last
paragraph of Section 3.04(a) relating to the Defeasance Deposit Account shall
apply.
(c) The Master Servicer shall give notice to the Trustee, the Somerset
Collection Non-Trust Mortgage Loan Noteholders and the Special Servicer of the
location of the Somerset Collection Custodial Account when first established and
of the new location of the Somerset Collection Custodial Account prior to any
change thereof.
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SECTION 3.04C. Xxxxxxxx Place Custodial Account.
(a) The Master Servicer shall establish and maintain, with respect to
the Xxxxxxxx Place Loan Pair, one or more separate accounts (collectively, the
"Xxxxxxxx Place Custodial Account") in which the amounts described in clauses
(i) through (ix) below shall be deposited and held in trust for the benefit of
the Xxxxxxxx Place Noteholders, as their interests may appear; provided that,
subject to the last paragraph of this Section 3.04C(a), a Xxxxxxxx Place
Custodial Account may be a sub-account of the Pool Custodial Account. The
Xxxxxxxx Place Custodial Account shall be an Eligible Account or, subject to the
last paragraph of this Section 3.04C(a), a sub-account of an Eligible Account.
The Master Servicer shall deposit or cause to be deposited in the Xxxxxxxx Place
Custodial Account, within one (1) Business Day of receipt (in the case of
payments or other collections on the Xxxxxxxx Place Loan Pair) or as otherwise
required hereunder, the following payments and collections received or made by
the Master Servicer or on its behalf with respect to the Xxxxxxxx Place Loan
Pair subsequent to the Cut-off Date (other than in respect of principal and
interest on the Xxxxxxxx Place Loan Pair due and payable on or before the
Cut-off Date, which payments shall be held pursuant to the terms of the Xxxxxxxx
Place Intercreditor Agreement, and other than amounts required to be deposited
in the Defeasance Deposit Account):
(i) all payments on account of principal of the Xxxxxxxx Place Loan
Pair, including Principal Prepayments, and regardless of whether those
payments are made by the related Mortgagor, any related guarantor, or any
party exercising cure rights under the Xxxxxxxx Place Intercreditor
Agreement or any related mezzanine intercreditor agreement, out of any
related Reserve Funds maintained for such purpose, out of collections on
any related Defeasance Collateral or from any other source;
(ii) all payments on account of interest on the Xxxxxxxx Place Loan
Pair, including Default Interest, and regardless of whether those payments
are made by the related Mortgagor, any related guarantor, or any party
exercising cure rights under the Xxxxxxxx Place Intercreditor Agreement or
any related mezzanine intercreditor agreement, out of any related Reserve
Funds maintained for such purpose, out of collections on any related
Defeasance Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance Charges and/or late
payment charges received in respect of the Xxxxxxxx Place Loan Pair;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of the Xxxxxxxx Place Loan Pair (other than
Liquidation Proceeds derived from the purchase of the Xxxxxxxx Place Trust
Mortgage Loan by or through the Xxxxxxxx Place Non-Trust Mortgage Loan
Noteholder pursuant to the Xxxxxxxx Place Intercreditor Agreement, the
purchase of the Xxxxxxxx Place Trust Mortgage Loan or the Trust's interest
in any related REO Property by the Depositor in connection with a Material
Breach or a Material Document Defect pursuant to Section 2.03 or the sale
of the Xxxxxxxx Place Trust Mortgage Loan as a Defaulted Trust Mortgage
Loan pursuant to Section 3.18);
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Xxxxxxxx Place Custodial
Account;
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(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
with respect to the Xxxxxxxx Place Loan Pair resulting from a deductible
clause in a blanket or master force placed hazard insurance policy;
(vii) any amounts required to be transferred from the Xxxxxxxx Place
REO Account pursuant to Section 3.16(c);
(viii) insofar as they do not constitute Escrow Payments, any amounts
paid by the related Mortgagor with respect to the Xxxxxxxx Place Loan Pair
specifically to cover items for which a Servicing Advance has been made;
and
(ix) any amounts representing a reimbursement, payment and/or
contribution due and owing to a party other than the Trust from any
Xxxxxxxx Place Non-Trust Mortgage Loan Noteholder in accordance with the
Xxxxxxxx Place Intercreditor Agreement.
The foregoing requirements for deposit in the Xxxxxxxx Place Custodial
Account shall be exclusive. Notwithstanding the foregoing, actual payments from
the related Mortgagor in respect of the Xxxxxxxx Place Loan Pair in the nature
of Escrow Payments, Reserve Funds, assumption fees, assumption application fees,
funds representing such Mortgagor's payment of costs and expenses associated
with assumptions and defeasance, modification fees, extension fees, charges for
beneficiary statements or demands, amounts collected for checks returned for
insufficient funds and any similar fees to which the Master Servicer or Special
Servicer is entitled as additional servicing compensation and that are not
expressly referred to in the prior paragraph, need not be deposited by the
Master Servicer in the Xxxxxxxx Place Custodial Account. If the Master Servicer
shall deposit into the Xxxxxxxx Place Custodial Account any amount not required
to be deposited therein, then it may at any time withdraw such amount from such
Custodial Account, any provision herein to the contrary notwithstanding. The
Master Servicer shall promptly deliver to the Special Servicer, as additional
special servicing compensation in accordance with Section 3.11(d), all
assumption fees and assumption application fees (or the applicable portions
thereof) and other transaction fees received by the Master Servicer with respect
to the Xxxxxxxx Place Loan Pair, to which the Special Servicer is entitled
pursuant to such section, upon receipt of a written statement of a Servicing
Officer of the Special Servicer describing the item and amount (unless pursuant
to this Agreement it is otherwise clear that the Special Servicer is entitled to
such amounts, in which case a written statement is not required). The Xxxxxxxx
Place Custodial Account shall be maintained as a segregated account, separate
and apart from trust funds created for mortgage-backed securities of other
series and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (viii) and (ix) of the second preceding paragraph with respect to the
Xxxxxxxx Place Loan Pair, the Special Servicer shall promptly, but in no event
later than two (2) Business Days after receipt, remit such amounts to the Master
Servicer for deposit into the Xxxxxxxx Place Custodial Account in accordance
with the second preceding paragraph, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item should not be
deposited because of a restrictive endorsement or other appropriate reason. With
respect to any such amounts paid by check to the order of the Special Servicer,
the Special Servicer shall endorse such check to the order of the Master
Servicer, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement or other appropriate reason. Any such amounts received
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by the Special Servicer with respect to an REO Property that relates to the
Xxxxxxxx Place Loan Pair shall initially be deposited by the Special Servicer
into the Xxxxxxxx Place REO Account and thereafter remitted to the Master
Servicer for deposit into the Xxxxxxxx Place Custodial Account, all in
accordance with Section 3.16(c).
Notwithstanding that the Xxxxxxxx Place Custodial Account may be a
sub-account of the Pool Custodial Account for reasons of administrative
convenience, the Xxxxxxxx Place Custodial Account and the Pool Custodial Account
shall, for all purposes of this Agreement (including the obligations and
responsibilities of the Master Servicer hereunder), be considered to be and
shall be required to be treated as, separate and distinct accounts. The Master
Servicer shall indemnify and hold harmless the Trust Fund and the Xxxxxxxx Place
Non-Trust Mortgage Loan Noteholders against any losses arising out of the
failure by the Master Servicer to perform its duties and obligations hereunder
as if such accounts were separate accounts. The provisions of this paragraph
shall survive any resignation or removal of the Master Servicer and appointment
of a successor master servicer.
(b) If and when the related Mortgagor elects to defease the Xxxxxxxx
Place Loan Pair or any portion thereof, the provisions of the last paragraph of
Section 3.04(a) relating to the Defeasance Deposit Account shall apply.
(c) The Master Servicer shall give notice to the Trustee, the Xxxxxxxx
Place Non-Trust Mortgage Loan Noteholder and the Special Servicer of the
location of the Xxxxxxxx Place Custodial Account when first established and of
the new location of the Xxxxxxxx Place Custodial Account prior to any change
thereof.
SECTION 3.04D. Cumberland Place Custodial Account.
(a) The Master Servicer shall establish and maintain, with respect to
the Cumberland Place Loan Pair, one or more separate accounts (collectively, the
"Cumberland Place Custodial Account") in which the amounts described in clauses
(i) through (ix) below shall be deposited and held in trust for the benefit of
the holders of the Mortgage Notes for the Cumberland Place Loan Pair, as their
interests may appear; provided that, subject to the last paragraph of this
Section 3.04D(a), a Cumberland Place Custodial Account may be a sub-account of
the Pool Custodial Account. The Cumberland Place Custodial Account shall be an
Eligible Account or, subject to the last paragraph of this Section 3.04D(a), a
sub-account of an Eligible Account. The Master Servicer shall deposit or cause
to be deposited in the Cumberland Place Custodial Account, within one (1)
Business Day of receipt (in the case of payments or other collections on the
Cumberland Place Loan Pair) or as otherwise required hereunder, the following
payments and collections received or made by the Master Servicer or on its
behalf with respect to the Cumberland Place Loan Pair subsequent to the Cut-off
Date (other than in respect of principal and interest on the Cumberland Place
Loan Pair due and payable on or before the Cut-off Date, which payments shall be
held pursuant to the terms of the Cumberland Place Co-Lender Agreement, and
other than amounts required to be deposited in the Defeasance Deposit Account):
(i) all payments on account of principal of the Cumberland Place Loan
Pair, including Principal Prepayments, and regardless of whether those
payments are made by the related Mortgagor, any related guarantor, or any
party exercising cure rights under the Cumberland Place Co-Lender Agreement
or any related mezzanine intercreditor agreement, out of any related
Reserve Funds maintained for such purpose, out of collections on any
related Defeasance Collateral or from any other source;
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(ii) all payments on account of interest on the Cumberland Place Loan
Pair, including Default Interest, and regardless of whether those payments
are made by the related Mortgagor, any related guarantor, or any party
exercising cure rights under the Cumberland Place Co-Lender Agreement or
any related mezzanine intercreditor agreement, out of any related Reserve
Funds maintained for such purpose, out of collections on any related
Defeasance Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance Charges and/or late
payment charges received in respect of the Cumberland Place Loan Pair;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of the Cumberland Place Loan Pair (other than
Liquidation Proceeds derived from the purchase of the Cumberland Place
Trust Mortgage Loan by or through the Cumberland Place Subordinate
Non-Trust Mortgage Loan Noteholder pursuant to the Cumberland Place
Co-Lender Agreement, the purchase of the Cumberland Place Trust Mortgage
Loan or the Trust's interest in any related REO Property by the Depositor
in connection with a Material Breach or a Material Document Defect pursuant
to Section 2.03 or the sale of the Cumberland Place Trust Mortgage Loan as
a Defaulted Trust Mortgage Loan pursuant to Section 3.18);
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Cumberland Place Custodial
Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
with respect to the Cumberland Place Loan Pair resulting from a deductible
clause in a blanket or master force placed hazard insurance policy;
(vii) any amounts required to be transferred from the Cumberland Place
REO Account pursuant to Section 3.16(c);
(viii) insofar as they do not constitute Escrow Payments, any amounts
paid by the related Mortgagor with respect to the Cumberland Place Loan
Pair specifically to cover items for which a Servicing Advance has been
made; and
(ix) any amounts representing a reimbursement, payment and/or
contribution due and owing to a party other than the Trust from any
Cumberland Place Non-Trust Mortgage Loan Noteholder in accordance with the
Cumberland Place Co-Lender Agreement.
The foregoing requirements for deposit in the Cumberland Place
Custodial Account shall be exclusive. Notwithstanding the foregoing, actual
payments from the related Mortgagor in respect of the Cumberland Place Loan Pair
in the nature of Escrow Payments, Reserve Funds, assumption fees, assumption
application fees, funds representing such Mortgagor's payment of costs and
expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary statements or demands, amounts collected
for checks returned for insufficient funds and any similar fees to which the
Master Servicer or Special Servicer is entitled as additional servicing
compensation and that are not expressly referred to in the prior paragraph, need
not be deposited by the Master Servicer in the Cumberland Place Custodial
Account. If the Master Servicer shall deposit into the Cumberland
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Place Custodial Account any amount not required to be deposited therein, then it
may at any time withdraw such amount from such Custodial Account, any provision
herein to the contrary notwithstanding. The Master Servicer shall promptly
deliver to the Special Servicer, as additional special servicing compensation in
accordance with Section 3.11(d), all assumption fees and assumption application
fees (or the applicable portions thereof) and other transaction fees received by
the Master Servicer with respect to the Cumberland Place Loan Pair, to which the
Special Servicer is entitled pursuant to such section, upon receipt of a written
statement of a Servicing Officer of the Special Servicer describing the item and
amount (unless pursuant to this Agreement it is otherwise clear that the Special
Servicer is entitled to such amounts, in which case a written statement is not
required). The Cumberland Place Custodial Account shall be maintained as a
segregated account, separate and apart from trust funds created for
mortgage-backed securities of other series and the other accounts of the Master
Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (viii) and (ix) of the second preceding paragraph with respect to the
Cumberland Place Loan Pair, the Special Servicer shall promptly, but in no event
later than two (2) Business Days after receipt, remit such amounts to the Master
Servicer for deposit into the Cumberland Place Custodial Account in accordance
with the second preceding paragraph, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item should not be
deposited because of a restrictive endorsement or other appropriate reason. With
respect to any such amounts paid by check to the order of the Special Servicer,
the Special Servicer shall endorse such check to the order of the Master
Servicer, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement or other appropriate reason. Any such amounts received
by the Special Servicer with respect to an REO Property that relates to the
Cumberland Place Loan Pair shall initially be deposited by the Special Servicer
into the Cumberland Place REO Account and thereafter remitted to the Master
Servicer for deposit into the Cumberland Place Custodial Account, all in
accordance with Section 3.16(c).
Notwithstanding that the Cumberland Place Custodial Account may be a
sub-account of the Pool Custodial Account for reasons of administrative
convenience, the Cumberland Place Custodial Account and the Pool Custodial
Account shall, for all purposes of this Agreement (including the obligations and
responsibilities of the Master Servicer hereunder), be considered to be and
shall be required to be treated as, separate and distinct accounts. The Master
Servicer shall indemnify and hold harmless the Trust Fund and the Cumberland
Place Non-Trust Mortgage Loan Noteholders against any losses arising out of the
failure by the Master Servicer to perform its duties and obligations hereunder
as if such accounts were separate accounts. The provisions of this paragraph
shall survive any resignation or removal of the Master Servicer and appointment
of a successor master servicer.
(b) If and when the related Mortgagor elects to defease the Cumberland
Place Loan Pair or any portion thereof, the provisions of the last paragraph of
Section 3.04(a) relating to the Defeasance Deposit Account shall apply.
(c) The Master Servicer shall give notice to the Trustee, the
Cumberland Place Non-Trust Mortgage Loan Noteholder and the Special Servicer of
the location of the Cumberland Place Custodial Account when first established
and of the new location of the Cumberland Place Custodial Account prior to any
change thereof.
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SECTION 3.05. Permitted Withdrawals From the Pool Custodial Account,
the Collection Account, the Interest Reserve Account and
the Excess Liquidation Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals from
the Pool Custodial Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Collection Account
the amounts required to be so deposited pursuant to the first paragraph of
Section 3.04(b), and any amounts that may be applied to make P&I Advances
with respect to the Mortgage Pool pursuant to Section 4.03(a);
(ii) to reimburse any Fiscal Agent, the Trustee and itself, in
that order, for xxxxxxxxxxxx X&X Advances made thereby with respect to the
Mortgage Pool (exclusive of any Serviced Combination Trust Mortgage Loan or
any successor REO Trust Mortgage Loan with respect thereto), any Fiscal
Agent's, the Trustee's and the Master Servicer's, as the case may be,
respective rights to reimbursement pursuant to this clause (ii) with
respect to any such P&I Advance being limited to amounts on deposit in the
Pool Custodial Account that represent Late Collections of interest and
principal (net of related Master Servicing Fees and any related Workout
Fees and/or Liquidation Fees) received in respect of the particular Trust
Mortgage Loan or REO Trust Mortgage Loan as to which such P&I Advance was
made;
(iii) to pay to itself and any separate holder of the Excess
Servicing Strip (subject to Section 3.11(a)) their respective shares of
earned and unpaid Master Servicing Fees with respect to the Mortgage Pool
(exclusive of any Serviced Combination Trust Mortgage Loan or any successor
REO Trust Mortgage Loan with respect thereto), the respective rights of the
Master Servicer and the holder of the Excess Servicing Strip to payment
pursuant to this clause (iii) with respect to any such Master Servicing
Fees being limited to amounts on deposit in the Pool Custodial Account that
are allocable as a recovery of interest on or in respect of the Trust
Mortgage Loan or REO Trust Mortgage Loan as to which such Master Servicing
Fees were earned;
(iv) to pay (A) to the Special Servicer, out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
earned and unpaid Special Servicing Fees in respect of each Specially
Serviced Trust Mortgage Loan and each REO Trust Mortgage Loan that relates
to an Administered REO Property and (B) to itself, out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
any Master Servicing Fee earned in respect of any Serviced Trust Mortgage
Loan or REO Trust Mortgage Loan that remains unpaid in accordance with
clause (iii) above or Section 3.05A, 3.05B, 3.05C or 3.05D, as applicable,
following a Final Recovery Determination made with respect to such Trust
Mortgage Loan or the related REO Property and the deposit into the Pool
Custodial Account of all amounts received in connection with such Final
Recovery Determination;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) any earned and unpaid Workout Fees and Liquidation Fees
in respect of each Specially Serviced Trust Mortgage Loan, Corrected Trust
Mortgage Loan and/or each REO Trust Mortgage Loan that relates to an
Administered REO Property (other than, if applicable, any
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Serviced Combination Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto), as applicable, in the amounts and from
the sources specified in Section 3.11(c);
(vi) to reimburse any Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, for any unreimbursed Servicing Advances
made thereby with respect to any Serviced Trust Mortgage Loan or
Administered REO Property (other than any Serviced Combination Trust
Mortgage Loan or any related Administered REO Property), any Fiscal
Agent's, the Trustee's and the Master Servicer's respective rights to
reimbursement pursuant to this clause (vi) with respect to any Servicing
Advance being limited to amounts on deposit in the Pool Custodial Account
that represent payments made by or on behalf of the related Mortgagor to
cover the item for which such Servicing Advance was made, and to amounts on
deposit in the Pool Custodial Account that represent Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds and, if applicable, REO Revenues
(in each case, if applicable, net of any Liquidation Fee or Workout Fee
payable therefrom) received in respect of the particular Serviced Trust
Mortgage Loan or Administered REO Property as to which such Servicing
Advance was made;
(vii) to reimburse any Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account, for any unreimbursed
Advances that have been or are determined to be Nonrecoverable Advances
(provided that such amounts may be withdrawn over time in accordance with
Sections 3.11(g) or 4.03(d), as applicable);
(viii) to pay any Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, any unpaid interest accrued and payable in
accordance with Section 3.11(g) or 4.03(d), as applicable, on any Advance
made thereby under this Agreement, any Fiscal Agent's, the Trustee's, the
Master Servicer's and the Special Servicer's respective rights to payment
pursuant to this clause (viii) with respect to interest on any such Advance
being limited to amounts on deposit in the Pool Custodial Account that
represent Default Charges collected on or in respect of the Trust Mortgage
Loan or REO Trust Mortgage Loan, as applicable, as to which the subject
Advance was made, as and to the extent contemplated by Sections 3.26(a) and
(b);
(ix) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, any Fiscal Agent, the Trustee,
itself and the Special Servicer, in that order, any unpaid interest accrued
and payable in accordance with Section 3.11(g) or 4.03(d), as applicable,
on any Advance made thereby with respect to the Mortgage Pool (or, in the
case of a Servicing Advance, made thereby with respect to a Serviced Loan
Combination), but only to the extent that such Advance has been reimbursed
or is being reimbursed and the related Default Charges then on deposit in
the Pool Custodial Account are not sufficient to make such payment as
contemplated by the immediately preceding clause (viii); provided that, if
such Advance relates to any Serviced Combination Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto (or, in the case of
Servicing Advance, relates to any Serviced Loan Combination), such payment
pursuant to this clause (ix) is to be made only to the extent that the
funds on deposit in the related Loan Combination Custodial Account are not
sufficient to make such payment as contemplated by Section 3.05A, 3.05B,
3.05C or 3.05D, as applicable, and such payment cannot be made out of the
Pool Custodial Account pursuant to clause (xviii) of this Section 3.05(a);
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(x) to pay, out of amounts on deposit in the Pool Custodial
Account that represent Default Charges collected on or in respect of the
Trust Mortgage Loan or REO Trust Mortgage Loan to which the subject expense
relates (to the extent such Default Charges are not otherwise applied as
contemplated by clause (viii) above), any unpaid expense (other than
interest accrued on Advances, which is payable pursuant to clause (viii)
above, and other than Special Servicing Fees, Liquidation Fees and Workout
Fees) that is incurred with respect to such Trust Mortgage Loan or REO
Trust Mortgage Loan and that, if paid from collections on the Mortgage Pool
other than Default Charges collected with respect to such Trust Mortgage
Loan or REO Trust Mortgage Loan, would constitute an Additional Trust Fund
Expense, as and to the extent contemplated by Sections 3.26(a) and (b);
(xi) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, for (A) costs and expenses incurred
by the Trust Fund pursuant to Section 3.09(c) (other than the costs of
environmental testing, which are to be covered by, and reimbursable as, a
Servicing Advance), (B) the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Sections 3.11(h),
3.18(d) or 4.03(c), and (C) the fees of any Independent Contractor retained
with respect to any related Administered REO Property pursuant to Section
3.17(d) (to the extent that it has not paid itself such fees prior to
remitting collections on such REO Property to the Special Servicer);
provided that, in the case of a Mortgaged Property that relates to a
Serviced Loan Combination, such payment pursuant to this clause (xi) is to
be made only to the extent that (X) it would not ultimately be payable out
of collections on or in respect of such Loan Combination or (Y) it is in
the best interests of the Certificateholders;
(xii) to pay itself, as additional master servicing compensation
in accordance with Section 3.11(b), any amounts on deposit in the Pool
Custodial Account that represent (A) interest and investment income earned
in respect of amounts held in the Pool Custodial Account as provided in
Section 3.06(b), but only to the extent of the Net Investment Earnings with
respect to the Pool Custodial Account for any related Investment Period,
(B) Prepayment Interest Excesses collected on the Mortgage Pool and (C) Net
Default Charges (after application pursuant to Sections 3.26(a) and (b))
actually collected that accrued in respect of a Performing Serviced Trust
Mortgage Loan; and to pay the Special Servicer, as additional special
servicing compensation in accordance with Section 3.11(d), any amounts on
deposit in the Pool Custodial Account that represent Net Default Charges
(after application pursuant to Sections 3.26(a) and (b)) actually collected
that accrued in respect of a Specially Serviced Trust Mortgage Loan and/or
an REO Trust Mortgage Loan that relates to an Administered REO Property;
(xiii) to pay itself, the Special Servicer, the Depositor, or any
of their respective members, managers, directors, officers, employees and
agents, as the case may be, out of general collections on the Mortgage Pool
on deposit in the Pool Custodial Account, any amounts payable to any such
Person pursuant to Section 6.03; provided that such payment does not relate
solely to a Serviced Non-Trust Mortgage Loan or any successor REO Mortgage
Loan with respect thereto;
(xiv) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, for (A) the cost of the Opinion of
Counsel contemplated by Section 11.02(a), (B) the cost of an Opinion of
Counsel contemplated by Section 11.01(a) or 11.01(c) in
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connection with any amendment to this Agreement requested by the Master
Servicer or the Special Servicer that protects or is in furtherance of the
rights and interests of Certificateholders, and (C) the cost of recording
this Agreement in accordance with Section 11.02(a); provided that, in the
cases of clauses (xiv)(A) and (xiv)(C), such payment shall be made from the
Pool Custodial Account only to the extent that it is not otherwise paid
from the related Loan Combination Custodial Account by the Master Servicer
Remittance Date following the applicable Collection Period in which the
expense is incurred;
(xv) to pay itself, the Special Servicer, the Depositor, any
Controlling Class Certificateholder or any other Person, as the case may
be, with respect to each Trust Mortgage Loan, if any, previously purchased
by such Person pursuant to this Agreement, all amounts received thereon
subsequent to the date of purchase that have been deposited in the Pool
Custodial Account;
(xvi) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
any servicing expenses, that would, if advanced, constitute Nonrecoverable
Servicing Advances (other than servicing expenses that relate solely to a
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto);
(xvii) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, to a Non-Trust Mortgage Loan
Noteholder, any amount (other than normal monthly payments) specifically
payable or reimbursable to such party by the Trust, in its capacity as
holder of the related Trust Mortgage Loan or REO Trust Mortgage Loan that
is part of the relevant Loan Combination, pursuant to the terms of the
related Co-Lender Agreement;
(xviii) to reimburse any Fiscal Agent, the Trustee, the Master
Servicer and/or the Special Servicer, as applicable, for unreimbursed
Advances, unpaid Master Servicing Fees and/or any unpaid interest on any
Advances, but only if and to the extent that such items relate solely to a
Serviced Combination Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto, each such party's respective rights to
reimbursement pursuant to this clause (xviii) to be limited to amounts on
deposit in the Pool Custodial Account that represent Liquidation Proceeds
derived from (A) the purchase of such Serviced Combination Trust Mortgage
Loan or the Trust's interest in any related Administered REO Property by or
on behalf of the Depositor or the UBS Mortgage Loan Seller pursuant to or
as contemplated by Section 2.03 or (B) the sale of such Serviced
Combination Trust Mortgage Loan to or through a related Serviced Non-Trust
Mortgage Loan Noteholder, pursuant to the related Co-Lender Agreement, or
as a Defaulted Trust Mortgage Loan, pursuant to Section 3.18; provided
that, such items may only be reimbursed to any party pursuant to this
clause (xviii) if and to the extent that such items have not been or are
not simultaneously being reimbursed to such party pursuant to Section
3.05A, 3.05B, 3.05C or 3.05D, as applicable; and provided, further, that,
in the case of a sale of a Serviced Combination Trust Mortgage Loan with
respect to which the Purchase Price therefor has been reduced by amounts
set forth in the last proviso of the definition of "Purchase Price", the
amount of any unpaid Master Servicing Fees, unreimbursed Advances and/or
unpaid interest on Advances reimbursable to any party pursuant to this
clause (xviii) shall be reduced by any related unpaid Master Servicing
Fees, unreimbursed Advances and unpaid interest on Advances in respect of
the subject Serviced Combination Trust Mortgage Loan or REO Trust Mortgage
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Loan that have served to so reduce such Purchase Price therefor and which,
following the purchase or sale from which the subject Liquidation Proceeds
have been derived, will continue to be payable or reimbursable under the
related co-lender agreement and/or any successor servicing agreement with
respect to the related Serviced Loan Combination to the Master Servicer
and/or the Special Servicer (and which amounts shall no longer be payable
hereunder);
(xix) on each Trust Master Servicer Remittance Date, to transfer
Excess Liquidation Proceeds in respect of the Mortgage Pool to the Trustee,
for deposit in the Excess Liquidation Proceeds Account, in accordance with
Section 3.04(d); and
(xx) to clear and terminate the Pool Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Pool Custodial Account pursuant to clauses (ii) through
(xix) above.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer), the Trustee or any
Fiscal Agent from the Pool Custodial Account, amounts permitted to be paid to
the Special Servicer (or to any such third party contractor), the Trustee or any
Fiscal Agent therefrom promptly upon receipt of a written statement of a
Servicing Officer of the Special Servicer or of a Responsible Officer of the
Trustee or any Fiscal Agent describing the item and amount to which the Special
Servicer (or such third party contractor), the Trustee or any Fiscal Agent, as
applicable, is entitled (unless such payment to the Special Servicer, the
Trustee (for example, the Trustee Fee) or any Fiscal Agent, as the case may be,
is clearly required pursuant to this Agreement, in which case a written
statement is not required). The Master Servicer may rely conclusively on any
such written statement and shall have no duty to re-calculate the amounts stated
therein.
In connection with any payments required to be made to a Non-Trust
Mortgage Loan Noteholder in accordance with Section 3.05(a)(xvii), the Master
Servicer may request a written statement from a servicing officer or responsible
officer of such Non-Trust Mortgage Loan Noteholder, describing the nature and
amount of the item for which such party is seeking payment or reimbursement and
setting forth the provision(s) of the related Co-Lender Agreement pursuant to
which such party believes it is entitled to reimbursement; provided that the
Master Servicer may not condition payments required to be made to a Non-Trust
Mortgage Loan Noteholder in accordance with Section 3.05(a)(xvii) upon receipt
of such a written statement (other than as permitted under the related Co-Lender
Agreement); and provided, further, that to the extent such a written statement
from a servicing officer or responsible officer of the subject Non-Trust
Mortgage Loan Noteholder is received by the Master Servicer, the Master Servicer
may reasonably rely upon such statement as the nature and amount of the item for
which reimbursement is sought.
The Special Servicer shall keep and maintain separate accounting for
each Specially Serviced Trust Mortgage Loan and Administered REO Property, on a
loan-by-loan basis, for the purpose of justifying any request for withdrawal
from the Pool Custodial Account. With respect to each Trust Mortgage Loan for
which it makes an Advance, each of the Trustee and any Fiscal Agent shall keep
and maintain separate accounting, on a loan-by-loan basis, for the purpose of
justifying any request for withdrawal from the Pool Custodial Account for
reimbursements of Advances or payments of interest thereon.
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(b) The Trustee may, from time to time, make withdrawals from the
Collection Account for any of the following purposes (in no particular order of
priority):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01 or 9.01, as applicable;
(ii) to pay (A) the Trustee, any Fiscal Agent or any of their
respective directors, officers, employees and agents, as the case may be,
out of general collections on the Mortgage Pool on deposit in the
Collection Account, any amounts payable or reimbursable to any such Person
pursuant to Section 7.01(b) and/or Section 8.05, as applicable, and (B) as
and when contemplated by Section 8.08, the cost of the Trustee's
transferring Mortgage Files and other documents to a successor after being
terminated by Certificateholders pursuant to Section 8.07(c) without cause;
(iii) to pay, out of general collections on the Mortgage Pool on
deposit in the Collection Account, for the cost of the Opinions of Counsel
sought by the Trustee or the Tax Administrator (A) as provided in clause
(iv) of the definition of "Disqualified Organization", (B) as contemplated
by Sections 10.01(i) and 10.02(e), or (C) as contemplated by Section
11.01(a) or 11.01(c) in connection with any amendment to this Agreement
requested by the Trustee which amendment is in furtherance of the rights
and interests of Certificateholders;
(iv) to pay, out of general collections on the Mortgage Pool on
deposit in the Collection Account, any and all federal, state and local
taxes imposed on any of the REMICs created hereunder or on the assets or
transactions of any such REMIC, together with all incidental costs and
expenses, to the extent none of the Depositor, the Trustee, the Tax
Administrator, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(j) or Section 10.02(f);
(v) to pay the Tax Administrator, out of general collections on
the Mortgage Pool on deposit in the Collection Account, any amounts
reimbursable to it pursuant to Section 10.01(f) or Section 10.02(b);
(vi) to pay the Master Servicer any amounts deposited by the
Master Servicer in the Collection Account in error;
(vii) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans
to the Interest Reserve Account as and when required by Section 3.04(c);
(viii) to pay itself any Net Investment Earnings with respect to
the Collection Account for any related Investment Period; and
(ix) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
On or prior to a Distribution Date, the Trustee shall be entitled to
withdraw amounts that are payable or reimbursable as set forth in clauses (ii)
through (viii) above from the Collection Account prior to making distributions
to Certificateholders on such Distribution Date.
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(c) On each Trust Master Servicer Remittance Date in March (commencing
in March 2004), the Trustee shall withdraw from the Interest Reserve Account and
deposit in the Collection Account all Interest Reserve Amounts that have been
deposited in the Interest Reserve Account in respect of the Interest Reserve
Mortgage Loans and any Interest Reserve REO Mortgage Loans during January and/or
February of the same year in accordance with Section 3.04(c). On each
Distribution Date, the Trustee may withdraw from the Interest Reserve Account
and pay itself any Net Investment Earnings with respect to the Interest Reserve
Account for the then most recently ended related Investment Period.
(d) On each Trust Master Servicer Remittance Date, the Trustee shall
withdraw from the Excess Liquidation Proceeds Account and deposit in the
Collection Account, for distribution on the following Distribution Date, an
amount equal to the lesser of (i) the entire amount, if any, then on deposit in
the Excess Liquidation Proceeds Account and (ii) the excess, if any, of the
aggregate amount distributable with respect to the Regular Interest Certificates
on such Distribution Date pursuant to Sections 4.01(a) and 4.01(b), over the
Available Distribution Amount for such Distribution Date (calculated without
regard to such transfer from the Excess Liquidation Proceeds Account to the
Collection Account); provided that on the Trust Master Servicer Remittance Date
immediately prior to the Final Distribution Date, the Trustee shall withdraw
from the Excess Liquidation Proceeds Account and deposit in the Collection
Account, for distribution on such Distribution Date, any and all amounts then on
deposit in the Excess Liquidation Proceeds Account. On each Distribution Date,
the Trustee may withdraw from the Excess Liquidation Proceeds Account and pay
itself any Net Investment Earnings with respect to the Excess Liquidation
Proceeds Account for the then most recently ended related Investment Period.
SECTION 3.05A. Permitted Withdrawals From the 000 Xxxxx Xxxxxx
Custodial Account.
The Master Servicer may, from time to time, make withdrawals from the
000 Xxxxx Xxxxxx Custodial Account for any of the following purposes (the order
set forth below not constituting an order of priority for such withdrawals,
except to the extent expressly provided in the 000 Xxxxx Xxxxxx Co-Lender
Agreement):
(i) to make remittances each month, on the 000 Xxxxx Xxxxxx Master
Servicer Remittance Date therein, to the 000 Xxxxx Xxxxxx Noteholders,
including the Trust (as holder of the 000 Xxxxx Xxxxxx Trust Mortgage Loan
or any 000 Xxxxx Xxxxxx REO Trust Mortgage Loan, as applicable), all in
accordance with the 000 Xxxxx Xxxxxx Co-Lender Agreement, such remittances
to the Trust to be made into the Pool Custodial Account;
(ii) to reimburse, (A) first, any Fiscal Agent, second, the Trustee,
and last, itself, in that order, for xxxxxxxxxxxx X&X Advances made by such
party (with its own funds) with respect to the 000 Xxxxx Xxxxxx Trust
Mortgage Loan or any 000 Xxxxx Xxxxxx REO Trust Mortgage Loan, and (B) the
applicable party under any related 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan
Securitization Agreement for any delinquency advance (comparable to a P&I
Advance) made by such party (with its own funds) with respect to the 000
Xxxxx Xxxxxx Non-Trust Mortgage Loan or any successor REO Mortgage Loan
with respect thereto, any such reimbursement pursuant to this clause (ii)
with respect to any such P&I Advance or comparable delinquency advance to
be made out of amounts on deposit in the 000 Xxxxx Xxxxxx Custodial
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Account that would otherwise be distributable to the related 000 Xxxxx
Xxxxxx Noteholder as late collections of interest on and/or principal of
such 000 Xxxxx Xxxxxx Mortgage Loan or any successor REO Mortgage Loan with
respect thereto, as the case may be, without regard to such delinquency
advance;
(iii) to reimburse first, any Fiscal Agent, second, the Trustee,
third, itself, and last, the Special Servicer, in that order, for any
unreimbursed Servicing Advances made thereby with respect to the 000 Xxxxx
Xxxxxx Loan Pair or any related REO Property, any such party's respective
rights to reimbursement pursuant to this clause (iii) with respect to any
Servicing Advance being limited to amounts on deposit in the 000 Xxxxx
Xxxxxx Custodial Account that represent payments made by or on behalf of
the related Mortgagor to cover the item for which such Servicing Advance
was made, and to amounts on deposit in the 000 Xxxxx Xxxxxx Custodial
Account that represent Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and, if applicable, REO Revenues (in each case, if
applicable, net of any Liquidation Fee or Workout Fee payable therefrom)
received in respect of the 000 Xxxxx Xxxxxx Loan Pair or any related REO
Property (with a corresponding allocation of such Servicing Advance and the
reimbursement thereof between the two 000 Xxxxx Xxxxxx Mortgage Loans or
any successor REO Mortgage Loans with respect thereto in accordance with
Section 4.01 of the 000 Xxxxx Xxxxxx Co-Lender Agreement);
(iv) to pay any Fiscal Agent, the Trustee and itself and any
comparable parties under a 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan
Securitization Agreement for any unpaid interest accrued and payable
hereunder or under a 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan
Securitization Agreement, as applicable, on any P&I Advance made thereby
under this Agreement or any delinquency advance comparable to a P&I Advance
made thereby under a 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan
Securitization Agreement, with respect to any 666 Fifth Avenue Pari Passu
Mortgage Loan or any successor REO Mortgage Loan with respect thereto, any
such payment (in accordance with the 000 Xxxxx Xxxxxx Co-Lender Agreement)
to be made pursuant to this clause (iv) out of: first, amounts on deposit
in the 000 Xxxxx Xxxxxx Custodial Account that would otherwise be
distributable under the 000 Xxxxx Xxxxxx Co-Lender Agreement as Default
Charges to the Trust, in the case of interest on a P&I Advance with respect
to the 000 Xxxxx Xxxxxx Trust Mortgage Loan or any 000 Xxxxx Xxxxxx REO
Trust Mortgage Loan, or the related 000 Xxxxx Xxxxxx Non-Trust Mortgage
Loan Noteholder, in the case of interest on a delinquency advance
(comparable to a P&I Advance) with respect to the 000 Xxxxx Xxxxxx
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto; and second, amounts on deposit in the 000 Xxxxx Xxxxxx Custodial
Account that would otherwise be distributable under the 000 Xxxxx Xxxxxx
Co-Lender Agreement to the Trust, in the case of interest on a P&I Advance
with respect to the 000 Xxxxx Xxxxxx Trust Mortgage Loan or any 000 Xxxxx
Xxxxxx REO Trust Mortgage Loan, or the related 000 Xxxxx Xxxxxx Non-Trust
Mortgage Loan Noteholder, in the case of interest on a delinquency advance
(comparable to a P&I Advance) with respect to the 000 Xxxxx Xxxxxx
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto; provided that, in the case of subclause second of this clause
(iv), such payment shall be made only to the extent the related P&I Advance
or comparable delinquency advance, as the case may be, has been or is
contemporaneously being reimbursed and only insofar as such unpaid interest
is not then payable pursuant to a withdrawal made in accordance with
subclause first of this clause (iv);
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(v) to pay any Fiscal Agent, the Trustee, itself and the Special
Servicer for any unpaid interest accrued and payable hereunder on any
Servicing Advance made thereby under this Agreement with respect to the 000
Xxxxx Xxxxxx Loan Pair or any related REO Property, any such payment (in
accordance with the 000 Xxxxx Xxxxxx Co-Lender Agreement) to be made
pursuant to this clause (v) out of: first, amounts on deposit in the 000
Xxxxx Xxxxxx Custodial Account that would otherwise be distributable under
the 000 Xxxxx Xxxxxx Co-Lender Agreement to the 000 Xxxxx Xxxxxx
Noteholders as Default Charges on their respective 000 Xxxxx Xxxxxx
Mortgage Loans or any successor REO Mortgage Loans with respect thereto,
all in accordance with Sections 3.26(d) through 3.26(f); and second, any
other amounts on deposit in the 000 Xxxxx Xxxxxx Custodial Account that
would otherwise be distributable under the 000 Xxxxx Xxxxxx Co-Lender
Agreement to the 000 Xxxxx Xxxxxx Noteholders on any 000 Xxxxx Xxxxxx
Master Servicer Remittance Date (with a corresponding allocation of such
interest expense and the payment thereof to the two 000 Xxxxx Xxxxxx
Mortgage Loans or any successor REO Mortgage Loans with respect thereto in
accordance with Section 4.01 of the 000 Xxxxx Xxxxxx Co-Lender Agreement);
provided that, in the case of subclause second of this clause (v), such
payment shall be made only to the extent the related Servicing Advance has
been or is contemporaneously being reimbursed and only insofar as such
unpaid interest is not then payable pursuant to a withdrawal made in
accordance with subclause first above of this clause (v);
(vi) (A) to pay to itself and any separate holder of the Excess
Servicing Strip (subject to Section 3.11(a)) their respective shares of
earned and unpaid Master Servicing Fees with respect to the 000 Xxxxx
Xxxxxx Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, and (B) to pay to itself earned and unpaid Master
Servicing Fees with respect to the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan
or any successor REO Mortgage Loan with respect thereto, in the case of (A)
and (B), the respective rights of the Master Servicer and the holder of the
Excess Servicing Strip to payment pursuant to this clause (vi) with respect
to either 000 Xxxxx Xxxxxx Mortgage Loan or any successor REO Mortgage Loan
with respect thereto being limited to amounts on deposit in the 000 Xxxxx
Xxxxxx Custodial Account that were received on or in respect of such
Mortgage Loan or such REO Mortgage Loan, as the case may be, and are
allocable as a recovery of interest thereon;
(vii) to reimburse, first, any Fiscal Agent, second, the Trustee, and
last, itself, in that order, for any xxxxxxxxxxxx X&X Advances made by such
party (with its own funds) with respect to the 000 Xxxxx Xxxxxx Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto
that such party has determined are Nonrecoverable Advances, any such
reimbursement (in accordance with the 000 Xxxxx Xxxxxx Co-Lender Agreement)
to be made pursuant to this clause (vii) out of amounts on deposit in the
000 Xxxxx Xxxxxx Custodial Account that would otherwise be payable under
the 000 Xxxxx Xxxxxx Co-Lender Agreement to the Trust on any 000 Xxxxx
Xxxxxx Master Servicer Remittance Date with respect to the 000 Xxxxx Xxxxxx
Trust Mortgage Loan;
(viii) to reimburse the applicable party under the related 000 Xxxxx
Xxxxxx Non-Trust Mortgage Loan Securitization Agreement for any delinquency
advance (comparable to a P&I Advance) made by such party (with its own
funds) with respect to the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan or any
successor REO Mortgage Loan with respect thereto that has been determined
by such party to be the equivalent of a Nonrecoverable Advance, any such
reimbursement (in accordance with the 000 Xxxxx Xxxxxx Co-Lender Agreement)
to be made
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pursuant to this clause (viii) out of amounts on deposit in the 000 Xxxxx
Xxxxxx Custodial Account that are otherwise payable under the 000 Xxxxx
Xxxxxx Co-Lender Agreement to the 000 Xxxxx Xxxxxx Non-Trust Noteholder on
any 000 Xxxxx Xxxxxx Master Servicer Remittance Date with respect to the
000 Xxxxx Xxxxxx Non-Trust Mortgage Loan or any successor REO Mortgage Loan
with respect thereto;
(ix) to reimburse, first, any Fiscal Agent, second, the Trustee,
third, itself, and last, the Special Servicer, in that order for any
unreimbursed Servicing Advance made by any such party with respect to the
000 Xxxxx Xxxxxx Loan Pair or any related REO Property that such party has
determined is a Nonrecoverable Advance, any such reimbursement (in
accordance with the 000 Xxxxx Xxxxxx Co-Lender Agreement) to be made
pursuant to this clause (ix) out of any amounts on deposit in the 000 Xxxxx
Xxxxxx Custodial Account that are otherwise payable under the 000 Xxxxx
Xxxxxx Co-Lender Agreement to the 000 Xxxxx Xxxxxx Noteholders on any 000
Xxxxx Xxxxxx Master Servicer Remittance Date (with a corresponding
allocation of such Servicing Advance and the reimbursement thereof to the
two 000 Xxxxx Xxxxxx Mortgage Loans or any successor REO Mortgage Loans
with respect thereto in accordance with Section 4.01 of the 000 Xxxxx
Xxxxxx Co-Lender Agreement);
(x) to pay to the Special Servicer any earned and unpaid Special
Servicing Fees in respect of the 000 Xxxxx Xxxxxx Loan Pair, any such
payment (in accordance with the 000 Xxxxx Xxxxxx Co-Lender Agreement) to be
made pursuant to this clause (x) out of any amounts on deposit in the 000
Xxxxx Xxxxxx Custodial Account that are otherwise payable under the 000
Xxxxx Xxxxxx Co-Lender Agreement to the 000 Xxxxx Xxxxxx Noteholders on any
000 Xxxxx Xxxxxx Master Servicer Remittance Date (with a corresponding
allocation of such Special Servicing Fees and the payment thereof to the
two 000 Xxxxx Xxxxxx Mortgage Loans or any successor REO Mortgage Loans
with respect thereto in accordance with Section 4.01 of the 000 Xxxxx
Xxxxxx Co-Lender Agreement);
(xi) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Workout Fees and Liquidation Fees in
respect of the 000 Xxxxx Xxxxxx Loan Pair, in the amounts and from the
sources specified in Section 3.11(c) out of any amounts on deposit in the
000 Xxxxx Xxxxxx Custodial Account that are otherwise payable under the 000
Xxxxx Xxxxxx Co-Lender Agreement to the 000 Xxxxx Xxxxxx Noteholders on any
000 Xxxxx Xxxxxx Master Servicer Remittance Date (with a corresponding
allocation of such fees and the payment thereof to the two 000 Xxxxx Xxxxxx
Mortgage Loans or any successor REO Mortgage Loans with respect thereto in
accordance with Section 4.01 of the 000 Xxxxx Xxxxxx Co-Lender Agreement);
(xii) to pay for (A) costs and expenses incurred with respect to the
000 Xxxxx Xxxxxx Mortgaged Property pursuant to Section 3.09(c) (other than
the costs of environmental testing, which are to be covered by, and
reimbursable as, a Servicing Advance), (B) the costs and expenses of
obtaining appraisals of the 000 Xxxxx Xxxxxx Mortgaged Property pursuant to
Section 3.11(h), 3.18(d) or Section 4.03(c), as applicable, (C) any
servicing expenses incurred with respect to the 000 Xxxxx Xxxxxx Loan Pair
or any related REO Property, that would, if advanced, constitute
Nonrecoverable Servicing Advances, in accordance with Section 3.11(i), and
(D) the fees of any Independent Contractor retained with respect to any REO
Property related to the 000 Xxxxx Xxxxxx Loan Pair pursuant to Section
3.17(d) (to the extent that it has
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not paid itself such fees prior to remitting collections on such REO
Property to the Special Servicer), any such payment (in accordance with the
000 Xxxxx Xxxxxx Co-Lender Agreement) to be made pursuant to this clause
(xii) out of any amounts on deposit in the 000 Xxxxx Xxxxxx Custodial
Account that are otherwise payable under the 000 Xxxxx Xxxxxx Co-Lender
Agreement to the 000 Xxxxx Xxxxxx Noteholders on any 000 Xxxxx Xxxxxx
Master Servicer Remittance Date (with a corresponding allocation of such
expenses and the payment thereof to the two 000 Xxxxx Xxxxxx Mortgage Loans
or any successor REO Mortgage Loans with respect thereto in accordance with
Section 4.01 of the 000 Xxxxx Xxxxxx Co-Lender Agreement);
(xii) to pay itself, as additional master servicing compensation in
accordance with Section 3.11(b), interest and investment income earned in
respect of amounts held in the 000 Xxxxx Xxxxxx Custodial Account as
provided in Section 3.06(b), but only to the extent of the Net Investment
Earnings with respect to the 000 Xxxxx Xxxxxx Custodial Account for any
related Investment Period;
(xiv) to pay itself, the Special Servicer, or any of their respective
members, managers, directors, officers, employees and agents, as the case
may be, any amounts payable to any such Person pursuant to Section 6.03, to
the extent such amounts relate to the 000 Xxxxx Xxxxxx Loan Pair, any such
payment (in accordance with the 000 Xxxxx Xxxxxx Co-Lender Agreement) to be
made pursuant to this clause (xiv) out of any amounts on deposit in the 000
Xxxxx Xxxxxx Custodial Account that are otherwise payable under the 000
Xxxxx Xxxxxx Co-Lender Agreement to the 000 Xxxxx Xxxxxx Noteholders on any
000 Xxxxx Xxxxxx Master Servicer Remittance Date (with a corresponding
allocation of such expenses and the payment thereof to the two 000 Xxxxx
Xxxxxx Mortgage Loans or any successor REO Mortgage Loans with respect
thereto in accordance with Section 4.01 of the 000 Xxxxx Xxxxxx Co-Lender
Agreement);
(xv) to pay (out of amounts otherwise payable thereto under the 000
Xxxxx Xxxxxx Co-Lender Agreement on any 000 Xxxxx Xxxxxx Master Servicer
Remittance Date) each 000 Xxxxx Xxxxxx Noteholder's share of the cost of
recording the 000 Xxxxx Xxxxxx Xx-Xxxxxx Agreement in accordance with
Section 6.02(a) of the 000 Xxxxx Xxxxxx Co-Lender Agreement;
(xvi) to pay for the cost of recording this Agreement and the cost of
any corresponding Opinion of Counsel, insofar as such recordation is for
the benefit of the 000 Xxxxx Xxxxxx Noteholders, any such payment (in
accordance with the 000 Xxxxx Xxxxxx Co-Lender Agreement) to be made
pursuant to this clause (xvi) out of any amounts on deposit in the 000
Xxxxx Xxxxxx Custodial Account that are otherwise payable under the 000
Xxxxx Xxxxxx Co-Lender Agreement to the 000 Xxxxx Xxxxxx Noteholders on any
000 Xxxxx Xxxxxx Master Servicer Remittance Date (with a corresponding
allocation of such expenses and the payment thereof to the two 000 Xxxxx
Xxxxxx Mortgage Loans or any successor REO Mortgage Loans with respect
thereto in accordance with Section 4.01 of the 000 Xxxxx Xxxxxx Co-Lender
Agreement);
(xvii) to the extent (A) consistent with the 000 Xxxxx Xxxxxx
Co-Lender Agreement and (B) not otherwise included among the payments
contemplated by clause (i) of this Section 3.05A, to transfer to the Pool
Custodial Account the aggregate of all Additional Trust Fund Expenses
and/or any other amounts relating to the 000 Xxxxx Xxxxxx Loan Pair, that
have been previously paid out of the Pool Custodial Account pursuant to
Section 3.05(a) and that, if not
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previously paid out of the Pool Custodial Account in accordance with
Section 3.05(a), would have been otherwise payable from the 000 Xxxxx
Xxxxxx Custodial Account under this Section 3.05A; and
(xviii) to clear and terminate the 000 Xxxxx Xxxxxx Custodial Account
at the termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records in connection with any withdrawal from the 000 Xxxxx Xxxxxx Custodial
Account pursuant to clauses (ii) through (xvii) of the preceding paragraph.
The Master Servicer shall pay to each of the Special Servicer (or to
third party contractors at the direction of the Special Servicer), the Trustee,
any Fiscal Agent or the applicable party under the related 000 Xxxxx Xxxxxx
Non-Trust Mortgage Loan Securitization Agreement (entitled to reimbursement as
set forth above in this Section 3.05(A)), as applicable, from the 000 Xxxxx
Xxxxxx Custodial Account, amounts permitted to be paid thereto from such account
promptly upon receipt of a written statement of: (i) a Servicing Officer of the
Special Servicer, (ii) a Responsible Officer of the Trustee or any Fiscal Agent,
or (iii) a servicing officer or responsible officer of such applicable party
under the related 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan Securitization
Agreement, as the case may be, in each case describing the item and amount to
which the Special Servicer (or such third party contractor), the Trustee, any
Fiscal Agent, or such applicable party, as the case may be, is entitled (unless
(x) such payment to the Special Servicer, the Trustee or any Fiscal Agent, as
the case may be, is clearly required pursuant to this Agreement, or (y) in the
case of amounts due to an applicable party under the related 000 Xxxxx Xxxxxx
Non-Trust Mortgage Loan Securitization Agreement, the Master Servicer has
knowledge of the amounts to which such party is entitled and such payment is
clearly required pursuant to this Agreement and the 000 Xxxxx Xxxxxx Co-Lender
Agreement, in which case written statements shall not be required). The Master
Servicer may rely conclusively on any such written statement and shall have no
duty to re-calculate the amounts stated therein. The parties seeking payment
pursuant to this section shall each keep and maintain separate accounting for
the purpose of justifying any request for withdrawal from the 000 Xxxxx Xxxxxx
Custodial Account, on a loan-by-loan basis.
To the extent (i) consistent with the 000 Xxxxx Xxxxxx Co-Lender
Agreement and (ii) not otherwise included as part of the normal monthly
remittance, the Master Servicer shall transfer from the 000 Xxxxx Xxxxxx
Custodial Account to the Pool Custodial Account, promptly upon amounts for such
purposes becoming available in the 000 Xxxxx Xxxxxx Custodial Account, the
aggregate of all Additional Trust Fund Expenses and/or any other amounts
relating to the 000 Xxxxx Xxxxxx Loan Pair, that have been previously paid out
of the Pool Custodial Account pursuant to Section 3.05(a) and that, if not
previously paid out of the Pool Custodial Account in accordance with Section
3.05(a), would have been otherwise payable from the 000 Xxxxx Xxxxxx Custodial
Account under this Section 3.05A.
In accordance with Section 4.01(i) of the 000 Xxxxx Xxxxxx Co-Lender
Agreement, the Master Servicer shall, as and when required thereunder, withdraw
from the 000 Xxxxx Xxxxxx Custodial Account and (i) transfer to the Pool
Custodial Account all amounts to be remitted to the Trust as holder of the 000
Xxxxx Xxxxxx Trust Mortgage Loan and/or any successor REO Trust Mortgage Loan
with respect thereto and (ii) remit to the 000 Xxxxx Xxxxxx Non-Trust Mortgage
Loan Noteholders the respective amounts due and owing to them. Monthly
remittances to the respective 000 Xxxxx Xxxxxx
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Non-Trust Mortgage Loan Noteholders shall, in each case, be made on the related
000 Xxxxx Xxxxxx Master Servicer Remittance Date in accordance with the
reasonable instructions thereof.
In the case of the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan, in the
event that the Master Servicer fails, on any 000 Xxxxx Xxxxxx Master Servicer
Remittance Date, to remit to the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan
Noteholder any amount(s) required to be so remitted to the 000 Xxxxx Xxxxxx
Non-Trust Mortgage Loan Noteholder hereunder by such date, the Master Servicer
shall pay the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholder, for the
account of the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholder, interest,
calculated at the federal funds rate, on such amount(s) not timely remitted,
from and including that Master Servicer Remittance Date, to but not including
the related distribution date for any securities backed by the 000 Xxxxx Xxxxxx
Non-Trust Mortgage Loan.
SECTION 3.05B. Permitted Withdrawals From the Somerset Collection
Custodial Account.
The Master Servicer may, from time to time, make withdrawals from the
Somerset Collection Custodial Account for any of the following purposes (the
order set forth below not constituting an order of priority for such
withdrawals, except to the extent expressly provided in the Somerset Collection
Co-Lender Agreement):
(i) to make remittances each month, on or before the Somerset
Collection Master Servicer Remittance Date therein, to the respective
Somerset Collection Noteholders, including the Trust (as holder of the
Somerset Collection Trust Mortgage Loan or any Somerset Collection REO
Trust Mortgage Loan, as applicable), all in accordance with the Somerset
Collection Co-Lender Agreement, such remittances to the Trust to be made
into the Pool Custodial Account;
(ii) to reimburse, (A) first, any Fiscal Agent, second, the Trustee,
and last, itself, in that order, for xxxxxxxxxxxx X&X Advances made by such
party (with its own funds) with respect to the Somerset Collection Trust
Mortgage Loan or any Somerset Collection REO Trust Mortgage Loan, and (B)
the applicable party under the related Somerset Collection Pari Passu
Non-Trust Mortgage Loan Securitization Agreement for any delinquency
advance (comparable to a P&I Advance) made by such party (with its own
funds) with respect to the Somerset Collection Pari Passu Non-Trust
Mortgage Loan or any successor REO Mortgage Loan with respect thereto, any
such reimbursement pursuant to this clause (ii) with respect to any such
P&I Advance or comparable delinquency advance to be made out of amounts on
deposit in the Somerset Collection Custodial Account that would otherwise
be distributable to the related Somerset Collection Noteholder as late
collections of interest on and/or principal of the subject Somerset
Collection Mortgage Loan or any successor REO Mortgage Loan with respect
thereto, as the case may be, without regard to such P&I Advance or
comparable delinquency advance, as the case may be, such reimbursement to
be deducted from the amounts so distributable;
(iii) to reimburse first, any Fiscal Agent, second, the Trustee,
third, itself, and last, the Special Servicer, in that order, for any
unreimbursed Servicing Advances made thereby with respect to the Somerset
Collection Loan Group or any related REO Property, any such party's
respective rights to reimbursement pursuant to this clause (iii) with
respect to any Servicing Advance being limited to amounts on deposit in the
Somerset Collection Custodial Account that represent payments made by or on
behalf of the related Mortgagor to cover the item for which
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such Servicing Advance was made, and to amounts on deposit in the Somerset
Collection Custodial Account that represent Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds and, if applicable, REO Revenues
(in each case, if applicable, net of any Liquidation Fee or Workout Fee
payable therefrom) received in respect of the Somerset Collection Loan
Group or any related REO Property (with, if and to the extent applicable, a
corresponding allocation of such payment to one or more of the Somerset
Collection Mortgage Loans or any successor REO Mortgage Loans with respect
thereto, and a corresponding deduction from the amounts otherwise payable
to one or more of the Somerset Collection Noteholders on the relevant
Somerset Collection Master Servicer Remittance Date, all in accordance with
Section 4.02 of the Somerset Collection Co-Lender Agreement);
(iv) to pay any Fiscal Agent, the Trustee and itself and any
comparable parties under a Somerset Collection Pari Passu Non-Trust
Mortgage Loan Securitization Agreement for any unpaid interest accrued and
payable hereunder or under a Somerset Collection Pari Passu Non-Trust
Mortgage Loan Securitization Agreement, as applicable, on any P&I Advance
made thereby under this Agreement or any delinquency advance comparable to
a P&I Advance made thereby under a Somerset Collection Pari Passu Non-Trust
Mortgage Loan Securitization Agreement, with respect to any Somerset
Collection Pari Passu Mortgage Loan or any successor REO Mortgage Loan with
respect thereto, any such payment (in accordance with the Somerset
Collection Co-Lender Agreement) to be made pursuant to this clause (iv) out
of: first, amounts on deposit in the Somerset Collection Custodial Account
that would otherwise be distributable under the Somerset Collection
Co-Lender Agreement to the Somerset Collection Noteholders as Default
Charges on their respective Somerset Collection Mortgage Loans or any
successor REO Mortgage Loans with respect thereto, all in accordance with
Sections 3.26(c) through 3.26(f), with such payment to be deducted from the
amounts so distributable; and second, amounts on deposit in the Somerset
Collection Custodial Account that would otherwise be distributable under
the Somerset Collection Co-Lender Agreement to the Somerset Collection
Subordinate Non-Trust Mortgage Loan Noteholder as collections of interest
on and/or principal of, or any other relevant amounts with respect to, the
Somerset Collection Subordinate Non-Trust Mortgage Loan or any successor
REO Mortgage Loan with respect thereto, with such payment to be deducted in
accordance with Section 4.02 of the Somerset Collection Co-Lender Agreement
from the amounts so distributable; and third, amounts on deposit in the
Somerset Collection Custodial Account that would otherwise be distributable
under the Somerset Collection Co-Lender Agreement to the Trust, in the case
of interest on a P&I Advance with respect to the Somerset Collection Trust
Mortgage Loan or any Somerset Collection REO Trust Mortgage Loan, or the
related Somerset Collection Non-Trust Mortgage Loan Noteholder, in the case
of interest on a delinquency advance (comparable to a P&I Advance) with
respect to the Somerset Collection Pari Passu Non-Trust Mortgage Loan or
any successor REO Mortgage Loan with respect thereto, as late collections
of interest on and/or principal of, or any other relevant amounts with
respect to, such Somerset Collection Pari Passu Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto, as applicable, with
such payment to be deducted in accordance with Section 4.02 of the Somerset
Collection Co-Lender Agreement from the amounts so distributable; provided
that in the case of subclauses second and third of this clause (iv), such
payment shall be made only to the extent the related P&I Advance or
comparable delinquency advance, as the case may be, has been or is
contemporaneously being reimbursed and only insofar as such unpaid interest
is not then payable pursuant to a withdrawal made in accordance with
subclause first of this clause (iv);
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(v) to pay any Fiscal Agent, the Trustee, itself and the Special
Servicer for any unpaid interest accrued and payable hereunder on any
Servicing Advance made thereby under this Agreement with respect to the
Somerset Collection Loan Group or any related REO Property, any such
payment (in accordance with the Somerset Collection Co-Lender Agreement) to
be made pursuant to this clause (v) out of: first, amounts on deposit in
the Somerset Collection Custodial Account that would otherwise be
distributable under the Somerset Collection Co-Lender Agreement to the
Somerset Collection Noteholders as Default Charges on their respective
Somerset Collection Mortgage Loans or any successor REO Mortgage Loans with
respect thereto, all in accordance with Sections 3.26(c) through 3.26(f),
with such payment to be deducted from the amounts so distributable; second,
amounts on deposit in the Somerset Collection Custodial Account that would
otherwise be distributable under the Somerset Collection Co-Lender
Agreement to the Somerset Collection Subordinate Non-Trust Mortgage Loan
Noteholder as collections of interest on and/or principal of, or any other
relevant amounts with respect to, the Somerset Collection Subordinate
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto, with such payment to be deducted in accordance with Section 4.02
of the Somerset Collection Co-Lender Agreement from the amounts so
distributable; and third, any other amounts on deposit in the Somerset
Collection Custodial Account that would otherwise be distributable under
the Somerset Collection Co-Lender Agreement to the Somerset Collection
Noteholders on any Somerset Collection Master Servicer Remittance Date
(with, if and to the extent applicable, a corresponding allocation of such
payment to one or more of the Somerset Collection Mortgage Loans or any
successor REO Mortgage Loans with respect thereto, and a corresponding
deduction from the amounts otherwise distributable to one or more of the
Somerset Collection Noteholders on the relevant Somerset Collection Master
Servicer Remittance Date, all in accordance with Section 4.02 of the
Somerset Collection Co-Lender Agreement); provided, in the case of
subclause second and third of this clause (v), such payment shall be made
only to the extent the related Servicing Advance has been or is
contemporaneously being reimbursed and only insofar as such unpaid interest
is not then payable pursuant to a withdrawal made in accordance with
subclause first above of this clause (v);
(vi) (A) to pay to itself and any separate holder of the Excess
Servicing Strip (subject to Section 3.11(a)) their respective shares of
earned and unpaid Master Servicing Fees with respect to the Somerset
Collection Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto, and (B) to pay to itself earned and unpaid Master
Servicing Fees with respect to each Somerset Collection Non-Trust Mortgage
Loan or any successor REO Mortgage Loan with respect thereto, in the case
of (A) and (B), the respective rights of the Master Servicer and the holder
of the Excess Servicing Strip to payment pursuant to this clause (vi) with
respect to any Somerset Collection Mortgage Loan or any successor REO
Mortgage Loans with respect thereto being limited to amounts on deposit in
the Somerset Collection Custodial Account that were received on or in
respect of such Mortgage Loan or such REO Mortgage Loan, as the case may
be, and are allocable as a recovery of interest thereon;
(vii) to reimburse, first, any Fiscal Agent, second, the Trustee, and
last, itself, in that order, for any xxxxxxxxxxxx X&X Advances made by such
party (with its own funds) with respect to the Somerset Collection Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto
that such party has determined are Nonrecoverable Advances, any such
reimbursement (in accordance with the Somerset Collection Co-Lender
Agreement) to be made
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pursuant to this clause (vii) out of: first, amounts on deposit in the
Somerset Collection Custodial Account that would otherwise be distributable
under the Somerset Collection Co-Lender Agreement to the Somerset
Collection Subordinate Non-Trust Mortgage Loan Noteholder as collections of
interest on and/or principal of, or any other relevant amounts with respect
to, the Somerset Collection Subordinate Non-Trust Mortgage Loan or any
successor REO Mortgage Loan with respect thereto, with such reimbursement
to be deducted in accordance with Section 4.02 of the Somerset Collection
Co-Lender Agreement from the amounts so distributable; and second, amounts
on deposit in the Somerset Collection Custodial Account that would
otherwise be payable under the Somerset Collection Co-Lender Agreement to
the Trust on any Somerset Collection Master Servicer Remittance Date with
respect to the Somerset Collection Trust Mortgage Loan or any Somerset
Collection REO Trust Mortgage Loan, with, if and to the extent applicable,
a corresponding deduction in accordance with Section 4.02 of the Somerset
Collection Co-Lender Agreement from the amounts otherwise payable thereto;
(viii) to reimburse the applicable party under the related Somerset
Collection Pari Passu Non-Trust Mortgage Loan Securitization Agreement for
any delinquency advance (comparable to a P&I Advance) made by such party
(with its own funds) with respect to the Somerset Collection Pari Passu
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto that has been determined by such party to be the equivalent of a
Nonrecoverable Advance, any such reimbursement (in accordance with the
Somerset Collection Co-Lender Agreement) to be made pursuant to this clause
(viii) out of: first, amounts on deposit in the Somerset Collection
Custodial Account that would otherwise be distributable under the Somerset
Collection Co-Lender Agreement to the Somerset Collection Subordinate
Non-Trust Mortgage Loan Noteholder as collections of interest on and/or
principal of, or any other relevant amounts with respect to, the Somerset
Collection Subordinate Non-Trust Mortgage Loan or any successor REO
Mortgage Loan with respect thereto, with such reimbursement to be deducted
in accordance with Section 4.02 of the Somerset Collection Co-Lender
Agreement from the amounts so distributable; and second, amounts on deposit
in the Somerset Collection Custodial Account that are otherwise payable
under the Somerset Collection Co-Lender Agreement to the related Somerset
Collection Pari Passu Non-Trust Noteholder on any Somerset Collection
Master Servicer Remittance Date with respect to such Somerset Collection
Pari Passu Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto, as the case may be, with, if and to the extent applicable,
a corresponding deduction in accordance with Section 4.02 of the Somerset
Collection Co-Lender Agreement from the amounts otherwise payable thereto;
(ix) to reimburse, first, any Fiscal Agent, second, the Trustee,
third, itself, and last, the Special Servicer, in that order for any
unreimbursed Servicing Advance made by any such party with respect to the
Somerset Collection Loan Group or any related REO Property that such party
has determined is a Nonrecoverable Advance, any such reimbursement (in
accordance with the Somerset Collection Co-Lender Agreement) to be made
pursuant to this clause (ix) out of: first, amounts on deposit in the
Somerset Collection Custodial Account that would otherwise be distributable
under the Somerset Collection Co-Lender Agreement to the Somerset
Collection Subordinate Non-Trust Mortgage Loan Noteholder as collections of
interest on and/or principal of the Somerset Collection Subordinate
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto, with such reimbursement to be deducted in accordance with Section
4.02 of the Somerset Collection Co-Lender Agreement from the amounts so
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distributable; and, second, any other amounts on deposit in the Somerset
Collection Custodial Account that are otherwise payable under the Somerset
Collection Co-Lender Agreement to the Somerset Collection Noteholders on
any Somerset Collection Master Servicer Remittance Date (with, if and to
the extent applicable, a corresponding allocation of such reimbursement to
one or more of the Somerset Collection Mortgage Loans or any successor REO
Mortgage Loans with respect thereto, and a corresponding deduction from the
amounts otherwise payable to one or more of the Somerset Collection
Noteholders on the relevant Somerset Collection Master Servicer Remittance
Date, all in accordance with Section 4.02 of the Somerset Collection
Co-Lender Agreement);
(x) to pay to the Special Servicer any earned and unpaid Special
Servicing Fees in respect of the Somerset Collection Loan Group, any such
payment (in accordance with the Somerset Collection Co-Lender Agreement) to
be made pursuant to this clause (x) out of: first, amounts on deposit in
the Somerset Collection Custodial Account that would otherwise be
distributable under the Somerset Collection Co-Lender Agreement to the
Somerset Collection Subordinate Non-Trust Mortgage Loan Noteholder as
collections of interest on and/or principal of the Somerset Collection
Subordinate Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto, with such payment to be deducted in accordance with
Section 4.02 of the Somerset Collection Co-Lender Agreement from the
amounts so distributable; and, second, any other amounts on deposit in the
Somerset Collection Custodial Account that are otherwise payable under the
Somerset Collection Co-Lender Agreement to the Somerset Collection
Noteholders on any Somerset Collection Master Servicer Remittance Date
(with, if and to the extent applicable, a corresponding allocation of such
payment to one or more of the Somerset Collection Mortgage Loans or any
successor REO Mortgage Loans with respect thereto, and a corresponding
deduction from the amounts otherwise payable to one or more of the Somerset
Collection Noteholders on the relevant Somerset Collection Master Servicer
Remittance Date, all in accordance with Section 4.02 of the Somerset
Collection Co-Lender Agreement);
(xi) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Workout Fees and Liquidation Fees in
respect of the Somerset Collection Loan Group, in the amounts and from the
sources specified in Section 3.11(c) out of: first, amounts on deposit in
the Somerset Collection Custodial Account that would otherwise be
distributable under the Somerset Collection Co-Lender Agreement to the
Somerset Collection Subordinate Non-Trust Mortgage Loan Noteholder as
collections of interest on and/or principal of the Somerset Collection
Subordinate Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto, with such payment to be deducted in accordance with
Section 4.02 of the Somerset Collection Co-Lender Agreement from the
amounts so distributable; and, second, any other amounts on deposit in the
Somerset Collection Custodial Account that are otherwise payable under the
Somerset Collection Co-Lender Agreement to the Somerset Collection
Noteholders on any Somerset Collection Master Servicer Remittance Date
(with, if and to the extent applicable, a corresponding allocation of such
payment to one or more of the Somerset Collection Mortgage Loans or any
successor REO Mortgage Loans with respect thereto, and a corresponding
deduction from the amounts otherwise payable to one or more of the Somerset
Collection Noteholders on the relevant Somerset Collection Master Servicer
Remittance Date, all in accordance with Section 4.02 of the Somerset
Collection Co-Lender Agreement);
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(xii) to pay for (A) costs and expenses incurred with respect to the
Somerset Collection Mortgaged Property pursuant to Section 3.09(c) (other
than the costs of environmental testing, which are to be covered by, and
reimbursable as, a Servicing Advance), (B) the costs and expenses of
obtaining appraisals of the Somerset Collection Mortgaged Property pursuant
to Section 3.11(h), 3.18(d) or Section 4.03(c), as applicable, (C) any
servicing expenses incurred with respect to the Somerset Collection Loan
Group or any related REO Property, that would, if advanced, constitute
Nonrecoverable Servicing Advances, in accordance with Section 3.11(i), and
(D) the fees of any Independent Contractor retained with respect to any REO
Property related to the Somerset Collection Loan Group pursuant to Section
3.17(d) (to the extent that it has not paid itself such fees prior to
remitting collections on such REO Property to the Special Servicer), any
such payment (in accordance with the Somerset Collection Co-Lender
Agreement) to be made pursuant to this clause (xii) out of: first, amounts
on deposit in the Somerset Collection Custodial Account that would
otherwise be distributable under the Somerset Collection Co-Lender
Agreement to the Somerset Collection Subordinate Non-Trust Mortgage Loan
Noteholder as collections of interest on and/or principal of the Somerset
Collection Subordinate Non-Trust Mortgage Loan or any successor REO
Mortgage Loan with respect thereto, with such payment to be deducted from
the amounts so distributable in accordance with Section 4.02 of the
Somerset Collection Co-Lender Agreement; and, second, any other amounts on
deposit in the Somerset Collection Custodial Account that are otherwise
payable under the Somerset Collection Co-Lender Agreement to the Somerset
Collection Noteholders on any Somerset Collection Master Servicer
Remittance Date (with, if and to the extent applicable, a corresponding
allocation of such payment to one or more of the Somerset Collection
Mortgage Loans or any successor REO Mortgage Loans with respect thereto,
and a corresponding deduction from the amounts otherwise payable to one or
more of the Somerset Collection Noteholders on the relevant Somerset
Collection Master Servicer Remittance Date, all in accordance with Section
4.02 of the Somerset Collection Co-Lender Agreement);
(xii) to pay itself, as additional master servicing compensation in
accordance with Section 3.11(b), interest and investment income earned in
respect of amounts held in the Somerset Collection Custodial Account as
provided in Section 3.06(b), but only to the extent of the Net Investment
Earnings with respect to the Somerset Collection Custodial Account for any
related Investment Period;
(xiv) to pay itself, the Special Servicer, or any of their respective
members, managers, directors, officers, employees and agents, as the case
may be, any amounts payable to any such Person pursuant to Section 6.03, to
the extent such amounts relate to the Somerset Collection Loan Group, any
such payment (in accordance with the Somerset Collection Co-Lender
Agreement) to be made pursuant to this clause (xiv) out of: first, amounts
on deposit in the Somerset Collection Custodial Account that would
otherwise be distributable under the Somerset Collection Co-Lender
Agreement to the Somerset Collection Subordinate Non-Trust Mortgage Loan
Noteholder as collections of interest on and/or principal of the Somerset
Collection Subordinate Non-Trust Mortgage Loan or any successor REO
Mortgage Loan with respect thereto, with such payment to be deducted from
the amounts so distributable in accordance with Section 4.02 of the
Somerset Collection Co-Lender Agreement; and, second, any other amounts on
deposit in the Somerset Collection Custodial Account that are otherwise
payable under the Somerset Collection Co-Lender Agreement to the Somerset
Collection Noteholders on any Somerset Collection Master Servicer
Remittance Date (with, if and to the extent applicable, a
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corresponding allocation of such payment to one or more of the Somerset
Collection Mortgage Loans or any successor REO Mortgage Loans with respect
thereto, and a corresponding deduction from the amounts otherwise payable
to one or more of the Somerset Collection Noteholders on the relevant
Somerset Collection Master Servicer Remittance Date, all in accordance with
Section 4.02 of the Somerset Collection Co-Lender Agreement);
(xv) to pay (out of amounts otherwise payable thereto under the
Somerset Collection Co-Lender Agreement on any Somerset Collection Master
Servicer Remittance Date) each Somerset Collection Noteholder's share of
the cost of recording the Somerset Collection Co-Lender Agreement in
accordance with Section 6.02(a) of the Somerset Collection Co-Lender
Agreement;
(xvi) to pay for the cost of recording this Agreement and the cost of
any corresponding Opinion of Counsel, insofar as such recordation is for
the benefit of the Somerset Collection Noteholders, any such payment (in
accordance with the Somerset Collection Co-Lender Agreement) to be made
pursuant to this clause (xvi) out of: first, amounts on deposit in the
Somerset Collection Custodial Account that would otherwise be distributable
under the Somerset Collection Co-Lender Agreement to the Somerset
Collection Subordinate Non-Trust Mortgage Loan Noteholder as collections of
interest on and/or principal of the Somerset Collection Subordinate
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto, with such payment to be deducted from the amounts so distributable
in accordance with Section 4.02 of the Somerset Collection Co-Lender
Agreement; and, second, any other amounts on deposit in the Somerset
Collection Custodial Account that are otherwise payable under the Somerset
Collection Co-Lender Agreement to the Somerset Collection Noteholders on
any Somerset Collection Master Servicer Remittance Date (with, if and to
the extent applicable, a corresponding allocation of such payment to one or
more of the Somerset Collection Mortgage Loans or any successor REO
Mortgage Loans with respect thereto, and a corresponding deduction from the
amounts otherwise payable to one or more of the Somerset Collection
Noteholders on the relevant Somerset Collection Master Servicer Remittance
Date, all in accordance with Section 4.02 of the Somerset Collection
Co-Lender Agreement);
(xvii) to the extent (A) consistent with the Somerset Collection
Co-Lender Agreement and (B) not otherwise included among the payments
contemplated by clause (i) of this Section 3.05B, to transfer to the Pool
Custodial Account the aggregate of all Additional Trust Fund Expenses
and/or any other amounts relating to the Somerset Collection Loan Group,
that have been previously paid out of the Pool Custodial Account pursuant
to Section 3.05(a) and that, if not previously paid out of the Pool
Custodial Account in accordance with Section 3.05(a), would have been
otherwise payable from the Somerset Collection Custodial Account under this
Section 3.05B;
(xviii) to reimburse any amounts paid by the Somerset Collection
Subordinate Non-Trust Mortgage Loan Noteholder to cure defaults under the
Somerset Collection Pari Passu Mortgage Loans, the Somerset Collection
Subordinate Non-Trust Mortgage Loan Noteholder's right to reimbursement
under this clause (xviii) to be limited to amounts on deposit in the
Somerset Collection Custodial Account that represent collections on the
Somerset Collection Loan Group that are in excess of all amounts (including
Monthly Payments and Assumed Monthly Payments) otherwise then due and owing
to the Somerset Collection Noteholders, the Master Servicer, the
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Special Servicer, the Trustee, any Fiscal Agent and/or any party under a
Somerset Collection Pari Passu Non-Trust Mortgage Loan Securitization
Agreement with respect to the Somerset Collection Loan Group; and
(xix) to clear and terminate the Somerset Collection Custodial Account
at the termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records in connection with any withdrawal from the Somerset Collection Custodial
Account pursuant to clauses (ii) through (xviii) of the preceding paragraph.
The Master Servicer shall pay to each of the Special Servicer (or to
third party contractors at the direction of the Special Servicer), the Trustee,
any Fiscal Agent or the applicable party under the related Somerset Collection
Pari Passu Non-Trust Mortgage Loan Securitization Agreement (entitled to
reimbursement as set forth above in this Section 3.05B), as applicable, from the
Somerset Collection Custodial Account, amounts permitted to be paid thereto from
such account promptly upon receipt of a written statement of: (i) a Servicing
Officer of the Special Servicer, (ii) a Responsible Officer of the Trustee or
any Fiscal Agent, or (iii) a servicing officer or responsible officer of such
applicable party under the related Somerset Collection Pari Passu Non-Trust
Mortgage Loan Securitization Agreement, as the case may be, in each case
describing the item and amount to which the Special Servicer (or such third
party contractor), the Trustee, any Fiscal Agent, or such applicable party, as
the case may be, is entitled (unless (x) such payment to the Special Servicer,
the Trustee or any Fiscal Agent, as the case may be, is clearly required
pursuant to this Agreement, or (y) in the case of amounts due to an applicable
party under the related Somerset Collection Pari Passu Non-Trust Mortgage Loan
Securitization Agreement, the Master Servicer has knowledge of the amounts to
which such party is entitled and such payment is clearly required pursuant to
this Agreement and the Somerset Collection Co-Lender Agreement, in which case
written statements shall not be required). The Master Servicer may rely
conclusively on any such written statement and shall have no duty to
re-calculate the amounts stated therein. The parties seeking payment pursuant to
this section shall each keep and maintain separate accounting for the purpose of
justifying any request for withdrawal from the Somerset Collection Custodial
Account, on a loan-by-loan basis.
To the extent (i) consistent with the Somerset Collection Co-Lender
Agreement and (ii) not otherwise included as part of the normal monthly
remittance, the Master Servicer shall transfer from the Somerset Collection
Custodial Account to the Pool Custodial Account, promptly upon amounts for such
purposes becoming available in the Somerset Collection Custodial Account, the
aggregate of all Additional Trust Fund Expenses and/or any other amounts
relating to the Somerset Collection Loan Group, that have been previously paid
out of the Pool Custodial Account pursuant to Section 3.05(a) and that, if not
previously paid out of the Pool Custodial Account in accordance with Section
3.05(a), would have been otherwise payable from the Somerset Collection
Custodial Account under this Section 3.05B.
In accordance with Article IV of the Somerset Collection Co-Lender
Agreement, the Master Servicer shall, as and when required thereunder, withdraw
from the Somerset Collection Custodial Account and (i) transfer to the Pool
Custodial Account all amounts to be remitted to the Trust as holder of the
Somerset Collection Trust Mortgage Loan and/or any successor REO Trust Mortgage
Loan with respect thereto and (ii) remit to the Somerset Collection Non-Trust
Mortgage Loan Noteholders the respective amounts due and owing to them. Monthly
remittances to the respective
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Somerset Collection Non-Trust Mortgage Loan Noteholders shall, in each case, be
made on the related Somerset Collection Master Servicer Remittance Date in
accordance with the reasonable instructions thereof.
In the case of the Somerset Collection Non-Trust Mortgage Loans only,
in the event that the Master Servicer fails, on any Somerset Collection Master
Servicer Remittance Date, to remit to any Somerset Collection Non-Trust Mortgage
Loan Noteholder any amount(s) required to be so remitted to such Somerset
Collection Non-Trust Mortgage Loan Noteholder hereunder by such date, the Master
Servicer shall pay such Somerset Collection Non-Trust Mortgage Loan Noteholder,
for the account of such Somerset Collection Non-Trust Mortgage Loan Noteholder,
interest, calculated at the federal funds rate, on such amount(s) not timely
remitted, from and including that Somerset Collection Master Servicer Remittance
Date, to but not including the related distribution date for any securities
backed by the subject Somerset Collection Non-Trust Mortgage Loan.
SECTION 3.05C. Permitted Withdrawals From the Xxxxxxxx Place Custodial
Account.
The Master Servicer may, from time to time, make withdrawals from the
Xxxxxxxx Place Custodial Account for any of the following purposes (the order
set forth below not constituting an order of priority for such withdrawals,
except to the extent expressly provided in the Xxxxxxxx Place Intercreditor
Agreement):
(i) to make remittances each month, on or before the Trust Master
Servicer Remittance Date therein to the respective Xxxxxxxx Place
Noteholders, including the Trust (as holder of the Xxxxxxxx Place Trust
Mortgage Loan or any Xxxxxxxx Place REO Trust Mortgage Loan, as
applicable), all in accordance with the Xxxxxxxx Place Intercreditor
Agreement, such remittances to the Trust to be made into the Pool Custodial
Account;
(ii) to reimburse, first, any Fiscal Agent, second, the Trustee, and
last, itself, in that order, for xxxxxxxxxxxx X&X Advances made by such
party (with its own funds) with respect to the Xxxxxxxx Place Trust
Mortgage Loan or any Xxxxxxxx Place REO Trust Mortgage Loan, any such
reimbursement pursuant to this clause (ii) with respect to any such P&I
Advance to be made out of amounts on deposit in the Xxxxxxxx Place
Custodial Account that would otherwise be distributable to the Xxxxxxxx
Place Noteholders as late collections of interest on and/or principal of
the Xxxxxxxx Place Loan Pair or any successor REO Mortgage Loans with
respect thereto, as the case may be, without regard to such P&I Advance,
all in accordance with Section 3 of the Xxxxxxxx Place Intercreditor
Agreement;
(iii) to reimburse first, any Fiscal Agent, second, the Trustee,
third, itself, and last, the Special Servicer, in that order, for any
unreimbursed Servicing Advances made thereby with respect to the Xxxxxxxx
Place Loan Pair or any related REO Property, any such party's respective
rights to reimbursement pursuant to this clause (iii) with respect to any
Servicing Advance being limited to amounts on deposit in the Xxxxxxxx Place
Custodial Account that represent payments made by or on behalf of the
related Mortgagor to cover the item for which such Servicing Advance was
made, and to amounts on deposit in the Xxxxxxxx Place Custodial Account
that represent Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds and, if applicable, REO Revenues (in each case, if applicable, net
of any Liquidation Fee or Workout
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Fee payable therefrom) received in respect of the Xxxxxxxx Place Loan Pair
or any related REO Property, all in accordance with Section 3 of the
Xxxxxxxx Place Intercreditor Agreement);
(iv) to pay any Fiscal Agent, the Trustee and itself, in that order,
for any unpaid interest accrued and payable hereunder on any P&I Advance
made thereby under this Agreement with respect to the Xxxxxxxx Place Trust
Mortgage Loan or any Xxxxxxxx Place REO Trust Mortgage Loan, any such
payment (to the extent permitted under the Xxxxxxxx Place Intercreditor
Agreement) to be made pursuant to this clause (iv) out of amounts on
deposit in the Xxxxxxxx Place Custodial Account that would otherwise be
payable under the Xxxxxxxx Place Intercreditor Agreement to the Xxxxxxxx
Place Noteholders on any Trust Master Servicer Remittance Date; provided,
that such payment shall be made only to the extent the related P&I Advance
or delinquency advance has been or is contemporaneously being reimbursed;
(v) to pay any Fiscal Agent, the Trustee, itself and the Special
Servicer for any unpaid interest accrued and payable hereunder on any
Servicing Advance made thereby under this Agreement with respect to the
Xxxxxxxx Place Loan Pair or any successor related REO Property, any such
payment (in accordance with the Xxxxxxxx Place Intercreditor Agreement) to
be made pursuant to this clause (v) out of amounts on deposit in the
Xxxxxxxx Place Custodial Account that would otherwise be payable under the
Xxxxxxxx Place Intercreditor Agreement to the Xxxxxxxx Place Noteholders on
any Trust Master Servicer Remittance Date; provided that such payment shall
be made only to the extent the related Servicing Advance has been or is
contemporaneously being reimbursed;
(vi) (A) to pay to itself and any separate holder of the Excess
Servicing Strip (subject to Section 3.11(a)) their respective shares of
earned and unpaid Master Servicing Fees with respect to the Xxxxxxxx Place
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, and (B) to pay to itself earned and unpaid Master Servicing Fees
with respect to the Xxxxxxxx Place Non-Trust Mortgage Loan or any successor
REO Mortgage Loan with respect thereto, in the case of (A) and (B), the
respective rights of the Master Servicer and the holder of the Excess
Servicing Strip to payment pursuant to this clause (vi) with respect to
either Xxxxxxxx Place Mortgage Loan or any successor REO Mortgage Loan with
respect thereto being limited to amounts on deposit in the Xxxxxxxx Place
Custodial Account that were received on or in respect of such Mortgage Loan
or such REO Mortgage Loan, as the case may be, and are allocable as a
recovery of interest thereon;
(vii) to reimburse, first, any Fiscal Agent, second, the Trustee, and
last, itself, in that order, for any xxxxxxxxxxxx X&X Advances made by such
party (with its own funds) with respect to the Xxxxxxxx Place Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto
that such party has determined are Nonrecoverable Advances, any such
reimbursement (in accordance with the Xxxxxxxx Place Intercreditor
Agreement) to be made pursuant to this clause (vii) out of amounts on
deposit in the Xxxxxxxx Place Custodial Account that are otherwise payable
under the Xxxxxxxx Place Intercreditor Agreement to the Xxxxxxxx Place
Noteholders on any Trust Master Servicer Remittance Date, all in accordance
with Section 3 of the Xxxxxxxx Place Intercreditor Agreement;
(viii) to reimburse, first, any Fiscal Agent, second, the Trustee,
third, itself, and last, the Special Servicer, in that order for any
unreimbursed Servicing Advance made by any such party
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with respect to the Xxxxxxxx Place Loan Pair or any related REO Property
that such party has determined is a Nonrecoverable Advance, any such
reimbursement (in accordance with the Xxxxxxxx Place Intercreditor
Agreement) to be made pursuant to this clause (viii) out of amounts on
deposit in the Xxxxxxxx Place Custodial Account that are otherwise payable
under the Xxxxxxxx Place Intercreditor Agreement to the Xxxxxxxx Place
Noteholders on any Trust Master Servicer Remittance Date, all in accordance
with Section 3 of the Xxxxxxxx Place Intercreditor Agreement;
(ix) to pay to the Special Servicer any earned and unpaid Special
Servicing Fees in respect of the Xxxxxxxx Place Loan Pair, any such payment
(in accordance with the Xxxxxxxx Place Intercreditor Agreement) to be made
pursuant to this clause (ix) out of amounts on deposit in the Xxxxxxxx
Place Custodial Account that would otherwise be payable under the Xxxxxxxx
Place Intercreditor Agreement to the Xxxxxxxx Place Noteholders on any
Trust Master Servicer Remittance Date, all in accordance with Section 3 of
the Xxxxxxxx Place Intercreditor Agreement;
(x) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Workout Fees and Liquidation Fees in
respect of the Xxxxxxxx Place Loan Pair, any such payment (in accordance
with the Xxxxxxxx Place Intercreditor Agreement) to be made pursuant to
this clause (x) out of amounts on deposit in the Xxxxxxxx Place Custodial
Account that would otherwise be payable under the Xxxxxxxx Place
Intercreditor Agreement to the Xxxxxxxx Place Noteholders on any Trust
Master Servicer Remittance Date, all in accordance with Section 3 of the
Xxxxxxxx Place Intercreditor Agreement;
(xi) to pay for (A) costs and expenses incurred with respect to the
Xxxxxxxx Place Mortgaged Property pursuant to Section 3.09(c) (other than
the costs of environmental testing, which are to be covered by, and
reimbursable as, a Servicing Advance), (B) the costs and expenses of
obtaining appraisals of the Xxxxxxxx Place Mortgaged Property pursuant to
Section 3.11(h), 3.18(d) or Section 4.03(c), as applicable, (C) any
servicing expenses incurred with respect to the Xxxxxxxx Place Loan Pair or
any related REO Property, that would, if advanced, constitute
Nonrecoverable Servicing Advances, in accordance with Section 3.11(i), and
(D) the fees of any Independent Contractor retained with respect to any REO
Property related to the Xxxxxxxx Place Loan Pair pursuant to Section
3.17(d) (to the extent that it has not paid itself such fees prior to
remitting collections on such REO Property to the Special Servicer), any
such payment (in accordance with the Xxxxxxxx Place Intercreditor
Agreement) to be made pursuant to this clause (xi) out of amounts on
deposit in the Xxxxxxxx Place Custodial Account that would otherwise be
payable under the Xxxxxxxx Place Intercreditor Agreement to the Xxxxxxxx
Place Noteholders on any Trust Master Servicer Remittance Date, all in
accordance with Section 3 of the Xxxxxxxx Place Intercreditor Agreement;
(xii) to pay itself, as additional master servicing compensation in
accordance with Section 3.11(b), interest and investment income earned in
respect of amounts held in the Xxxxxxxx Place Custodial Account as provided
in Section 3.06(b), but only to the extent of the Net Investment Earnings
with respect to the Xxxxxxxx Place Custodial Account for any related
Investment Period;
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(xiii) to pay itself, the Special Servicer, or any of their respective
members, managers, directors, officers, employees and agents, as the case
may be, any amounts payable to any such Person pursuant to Section 6.03, to
the extent such amounts relate to the Xxxxxxxx Place Loan Pair, any such
payment (in accordance with the Xxxxxxxx Place Intercreditor Agreement) to
be made pursuant to this clause (xiii) out of amounts on deposit in the
Xxxxxxxx Place Custodial Account that would otherwise be payable under the
Xxxxxxxx Place Intercreditor Agreement to the Xxxxxxxx Place Noteholders on
any Trust Master Servicer Remittance Date, all in accordance with Section 3
of the Xxxxxxxx Place Intercreditor Agreement;
(xiv) to pay (out of amounts otherwise payable thereto under the
Xxxxxxxx Place Intercreditor Agreement on any Trust Master Servicer
Remittance Date) each Xxxxxxxx Place Noteholder's share of the cost of
recording the Xxxxxxxx Place Intercreditor Agreement in accordance with
Section 3 of the Xxxxxxxx Place Intercreditor Agreement;
(xv) to pay for the cost of recording this Agreement and the cost of
any corresponding Opinion of Counsel, insofar as such recordation is for
the benefit of the Xxxxxxxx Place Noteholders, any such payment (in
accordance with the Xxxxxxxx Place Intercreditor Agreement) to be made
pursuant to this clause (xv) out of amounts on deposit in the Xxxxxxxx
Place Custodial Account that would otherwise be payable under the Xxxxxxxx
Place Intercreditor Agreement to the Xxxxxxxx Place Noteholders on any
Trust Master Servicer Remittance Date, all in accordance with Section 3 of
the Xxxxxxxx Place Intercreditor Agreement;
(xvi) to the extent (A) consistent with the Xxxxxxxx Place
Intercreditor Agreement and (B) not otherwise included among the payments
contemplated by clause (i) of this Section 3.05C, to transfer to the Pool
Custodial Account the aggregate of all Additional Trust Fund Expenses
and/or any other amounts relating to the Xxxxxxxx Place Loan Pair, that
have been previously paid out of the Pool Custodial Account pursuant to
Section 3.05(a) and that, if not previously paid out of the Pool Custodial
Account in accordance with Section 3.05(a), would have been otherwise
payable from the Xxxxxxxx Place Custodial Account under this Section 3.05C;
and
(xvii) to reimburse any amounts paid by the Xxxxxxxx Place Non-Trust
Mortgage Loan Noteholder to cure defaults under the Xxxxxxxx Place Trust
Mortgage Loan, the Xxxxxxxx Place Non-Trust Mortgage Loan Noteholder's
right to reimbursement under this clause (xviii) to be limited to amounts
on deposit in the Xxxxxxxx Place Custodial Account that represent
collections on the Xxxxxxxx Place Loan Pair that are in excess of all
amounts (including Monthly Payments and Assumed Monthly Payments) otherwise
then due and owing to the Xxxxxxxx Place Noteholders, the Master Servicer,
the Special Servicer, the Trustee and/or any Fiscal Agent with respect to
the Xxxxxxxx Place Loan Pair; and
(xviii) to clear and terminate the Xxxxxxxx Place Custodial Account at
the termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records in connection with any withdrawal from the Xxxxxxxx Place Custodial
Account pursuant to clauses (ii) through (xvi) of the second preceding
paragraph.
The Master Servicer shall pay to each of the Special Servicer (or to
third party contractors at the direction of the Special Servicer), the Trustee
and any Fiscal Agent, as applicable,
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from the Xxxxxxxx Place Custodial Account, amounts permitted to be paid thereto
from such account promptly upon receipt of a written statement of a Servicing
Officer of the Special Servicer or a Responsible Officer of the Trustee or any
Fiscal Agent, as the case may be, describing the item and amount to which the
Special Servicer (or such third party contractor), the Trustee or any Fiscal
Agent, as the case may be, is entitled (unless such payment to the Special
Servicer, the Trustee or any Fiscal Agent, as the case may be, is clearly
required pursuant to this Agreement, in which case a written statement is not
required). The Master Servicer may rely conclusively on any such written
statement and shall have no duty to re-calculate the amounts stated therein. The
parties seeking payment pursuant to this section shall each keep and maintain
separate accounting for the purpose of justifying any request for withdrawal
from the Xxxxxxxx Place Custodial Account, on a loan-by-loan basis.
To the extent (i) consistent with the Xxxxxxxx Place Intercreditor
Agreement and (ii) not otherwise included as part of the normal monthly
remittances, the Master Servicer shall transfer from the Xxxxxxxx Place
Custodial Account to the Pool Custodial Account, promptly upon amounts for such
purposes becoming available in the Xxxxxxxx Place Custodial Account, the
aggregate of all Additional Trust Fund Expenses and/or any other amounts
relating to the Xxxxxxxx Place Loan Pair that have been previously paid out of
the Pool Custodial Account pursuant to Section 3.05(a) and that, if not
previously paid out of the Pool Custodial Account in accordance with Section
3.05(a), would have been otherwise payable from the Xxxxxxxx Place Custodial
Account under this Section 3.05C.
In accordance with Sections 3 and 5 of the Xxxxxxxx Place
Intercreditor Agreement, and taking into account any required adjustments to the
principal balance of the Xxxxxxxx Place Non-Trust Mortgage Loan or any successor
REO Mortgage Loan with respect thereto provided for in Section 4 of the Xxxxxxxx
Place Intercreditor Agreement, the Master Servicer shall, as and when required
thereunder, withdraw from the Xxxxxxxx Place Custodial Account and (i) transfer
to the Pool Custodial Account all amounts to be remitted to the Trust as holder
of the Xxxxxxxx Place Trust Mortgage Loan or any Xxxxxxxx Place REO Trust
Mortgage Loan and (ii) remit to the Xxxxxxxx Place Non-Trust Mortgage Loan
Noteholder the amount due and owing to it. Monthly remittances to the Xxxxxxxx
Place Non-Trust Mortgage Loan Noteholder shall be made on the related Trust
Master Servicer Remittance Date in accordance with the reasonable instructions
thereof.
SECTION 3.05D. Permitted Withdrawals From the Cumberland Place
Custodial Account.
The Master Servicer may, from time to time, make withdrawals from the
Cumberland Place Custodial Account for any of the following purposes (the order
set forth below not constituting an order of priority for such withdrawals,
except to the extent expressly provided in the Cumberland Place Co-Lender
Agreement):
(i) to make remittances each month on or before the Trust Master
Servicer Remittance Date therein or otherwise from time to time, all as
contemplated by Section 4.02 of the Cumberland Place Co-Lender Agreement,
to the Cumberland Place Noteholders, including the Trustee (as holder of
the Cumberland Place Trust Mortgage Loan or any Cumberland Place REO Trust
Mortgage Loan, as applicable), in accordance with the Cumberland Place
Co-Lender Agreement and the related loan documents, after taking into
account the withdrawals contemplated by clauses (ii) through (xvii) below,
such remittances to the Trustee to be made into the Pool Custodial Account;
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(ii) to reimburse any Fiscal Agent, the Trustee and itself, in that
order, for xxxxxxxxxxxx X&X Advances made by such party (with its own
funds) hereunder with respect to the Cumberland Place Trust Mortgage Loan
or any Cumberland Place REO Trust Mortgage Loan, any such party's rights to
reimbursement pursuant to this clause (ii) with respect to any such P&I
Advance being limited to amounts on deposit in the Cumberland Place
Custodial Account that are allocable (pursuant to the related loan
documents and/or the Cumberland Place Co-Lender Agreement) as late
collections of interest and principal (net of the related Master Servicing
Fees and any related Workout Fees or Liquidation Fees) received in respect
of the Cumberland Place Trust Mortgage Loan or Cumberland Place REO Trust
Mortgage Loan;
(iii) (A) to pay to itself and any separate holder of the Excess
Servicing Strip (subject to Section 3.11(a)) their respective shares of
earned and unpaid Master Servicing Fees with respect to the Cumberland
Place Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, and (B) to pay to itself earned and unpaid Master
Servicing Fees with respect to the Cumberland Place Non-Trust Mortgage Loan
or any successor REO Mortgage Loan with respect thereto, in the case of (A)
and (B), the respective rights of the Master Servicer and the holder of the
Excess Servicing Strip to payment pursuant to this clause (iii) with
respect to either Cumberland Place Mortgage Loan or any successor REO
Mortgage Loan with respect thereto being limited to amounts on deposit in
the Cumberland Place Custodial Account that were received on or in respect
of such Mortgage Loan or such REO Mortgage Loan, as the case may be, and
are allocable as a recovery of interest thereon;
(iv) to reimburse any Fiscal Agent, the Trustee and itself, in that
order, for any xxxxxxxxxxxx X&X Advances made by such party (with its own
funds) hereunder with respect to the Cumberland Place Trust Mortgage Loan
or Cumberland Place REO Trust Mortgage Loan that such party has determined
are Nonrecoverable P&I Advances, such party's rights to reimbursement
pursuant to this clause (iv) with respect to any such P&I Advance being
limited to any amounts on deposit in the Cumberland Place Custodial Account
that are allocable (pursuant to the related loan documents and/or the
Cumberland Place Co-Lender Agreement) to the Cumberland Place Trust
Mortgage Loan or Cumberland Place REO Trust Mortgage Loan;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Special Servicing Fees, Workout Fees
and Liquidation Fees in respect of the Cumberland Place Loan Group, in the
amounts and from the sources specified in Section 3.11(c);
(vi) to pay any real estate taxes, insurance premiums, Liquidation
Expenses or other servicing expenses in respect of the Cumberland Place
Loan Group and/or any Cumberland Place Mortgaged Property that remain
unpaid and as to which specific amounts were (in accordance with the
Cumberland Place Co-Lender Agreement) deposited in the Cumberland Place
Custodial Account to pay the same, such payments to be made out of the
specific amounts allocated thereto;
(vii) to reimburse any Fiscal Agent, the Trustee, the Master Servicer
and the Special Servicer, in that order, for any unreimbursed Servicing
Advances made thereby with respect to the Cumberland Place Loan Group
and/or any Cumberland Place REO Property, any such party's respective
rights to reimbursement pursuant to this clause (vii) with respect to any
such Servicing Advance being limited (A) first, to amounts on deposit in
the Cumberland Place
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Custodial Account that represent a payment by or on behalf of the related
Mortgagor or any other collection specifically allocated (in accordance
with the Cumberland Place Co-Lender Agreement) to cover the item for which
the subject Servicing Advance was made, and (B) second, to amounts on
deposit in the Cumberland Place Custodial Account that represent
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and, if
applicable, REO Revenues (in each case, if applicable, net of any
Liquidation Fee or Workout Fee payable therefrom) received in respect of
the Cumberland Place Loan Group or any Cumberland Place REO Property (and,
further, with respect to the amounts described in this clause (vii)(B),
first, consistent with the Cumberland Place Co-Lender Agreement, out of the
portion thereof that would otherwise be distributable to the Cumberland
Place Non-Trust Mortgage Loan Noteholder, and second, consistent with the
Cumberland Place Co-Lender Agreement, out of the portion thereof that would
otherwise be distributable to the Trust with respect to the Cumberland
Place Trust Mortgage Loan and/or any Cumberland Place REO Trust Mortgage
Loan);
(viii) to reimburse any Fiscal Agent, the Trustee, the Master Servicer
and the Special Servicer, in that order, for any unreimbursed Servicing
Advances made thereby with respect to the Cumberland Place Loan Group
and/or the related REO Property, that such party has determined are
Nonrecoverable Advances, such party's respective rights to reimbursement
pursuant to this clause (viii) with respect to any such Servicing Advance
being limited to any amounts on deposit in the Cumberland Place Custodial
Account received in respect of the Cumberland Place Loan Group or related
REO Property; provided that, consistent with the Cumberland Place Co-Lender
Agreement, such amounts shall be reimbursed first, out of the portion
thereof that would otherwise be distributable to the Cumberland Place
Non-Trust Mortgage Loan Noteholder, and second, out of the portion thereof
that would otherwise be distributable to the Trust with respect to the
Cumberland Place Trust Mortgage Loan and/or any Cumberland Place REO Trust
Mortgage Loan.
(ix) to pay any Fiscal Agent, the Trustee, the Master Servicer and the
Special Servicer, in that order, for any unpaid interest accrued on any
Servicing Advance made thereby with respect to the Cumberland Place Loan
Group or any Cumberland Place REO Property, any such party's respective
rights to payment pursuant to this clause (ix) permitted to be satisfied
(A) first, out of any amounts on deposit in the Cumberland Place Custodial
Account that represent Default Charges collected on or in respect of the
Cumberland Place Loan Group, as and to the extent contemplated by Section
3.26(c) and (d), (B) second, consistent with the Cumberland Place Co-Lender
Agreement, to the extent that the Default Charges described in the
immediately preceding subclause (ix)(A) are insufficient, but only if the
subject Servicing Advance is being reimbursed at the same time or if the
subject Servicing Advance has been previously reimbursed, out of any
amounts on deposit in the Cumberland Place Custodial Account that represent
any other collections on or in respect of the Cumberland Place Non-Trust
Mortgage Loan or any successor Cumberland Place REO Mortgage Loan with
respect thereto, and (C) third, consistent with the Cumberland Place
Co-Lender Agreement, to the extent that the amounts set forth in subclauses
(ix)(A) and (ix)(B) above are insufficient, but only if the subject
Servicing Advance is being reimbursed at the same time or if the subject
Servicing Advance has been previously reimbursed, out of any amounts on
deposit in the Cumberland Place Custodial Account that represent any other
collections on or in respect of the Cumberland Place Trust Mortgage Loan or
any Cumberland Place REO Trust Mortgage Loan;
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(x) to pay any Fiscal Agent, the Trustee and the Master Servicer, in
that order, for any unpaid interest accrued on any P&I Advance made thereby
with respect to the Cumberland Place Trust Mortgage Loan or Cumberland
Place REO Trust Mortgage Loan, any such party's right to payment pursuant
to this clause (x) permitted to be satisfied (A) first, out of any amounts
on deposit in the Cumberland Place Custodial Account that represent Default
Charges collected on or in respect of the Cumberland Place Loan Group, as
and to the extent contemplated by Section 3.26(c) and (d), (B) second,
consistent with the Cumberland Place Co-Lender Agreement, to the extent
that the Default Charges described in the immediately preceding clause (A)
are insufficient, but only if the subject P&I Advance is being reimbursed
at the same time or if the subject P&I Advance has been previously
reimbursed, out of any amounts on deposit in the Cumberland Place Custodial
Account that represent any other collections on or in respect of the
Cumberland Place Non-Trust Mortgage Loan or any successor Cumberland Place
REO Mortgage Loan with respect thereto, and (C) third, consistent with the
Cumberland Place Co-Lender Agreement, to the extent that the amounts set
forth in subclauses (x)(A) and (x)(B) above are insufficient, but only if
the subject P&I Advance is being reimbursed at the same time or if the
subject P&I Advance has been previously reimbursed, out of any amounts on
deposit in the Cumberland Place Custodial Account that represent any other
collections on or in respect of the Cumberland Place Trust Mortgage Loan or
Cumberland Place REO Trust Mortgage Loan;
(xi) consistent with the Cumberland Place Co-Lender Agreement, to pay
(first, out of amounts otherwise payable to the Cumberland Place Non-Trust
Mortgage Loan Noteholder, and then out of amounts (exclusive of Default
Charges) otherwise payable to the Trust with respect to the Cumberland
Place Trust Mortgage Loan) for (A) costs and expenses incurred with respect
to any Cumberland Place Mortgaged Property pursuant to Section 3.09(c)
(other than the costs of environmental testing, which are to be covered by,
and reimbursable as, a Servicing Advance), (B) the costs and expenses of
obtaining appraisals of any Cumberland Place Mortgaged Property pursuant to
Section 3.11(h), 3.18(d) or 4.03A(c), as applicable, (C) any servicing
expenses incurred with respect to any Cumberland Place Mortgage Loan,
Cumberland Place Mortgaged Property or Cumberland Place REO Property, that
would, if advanced, constitute Nonrecoverable Servicing Advances, in
accordance with Section 3.11(i), and (D) the fees of any Independent
Contractor retained with respect to any Cumberland Place REO Property
pursuant to Section 3.17(d) (to the extent that it has not paid itself such
fees prior to remitting collections on such REO Property to the Special
Servicer);
(xii) to pay itself, as additional master servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income earned
in respect of amounts held in the Cumberland Place Custodial Account as
provided in Section 3.06(b), but only to the extent of the Net Investment
Earnings with respect to the Cumberland Place Custodial Account for any
related Investment Period and (B) Net Default Charges (after application
pursuant to Section 3.26(c) and (d)) actually collected that accrued in
respect of the Cumberland Place Non-Trust Mortgage Loan during a period
that the Cumberland Place Mortgage Loan constituted a Performing Serviced
Mortgage Loan, and to pay the Special Servicer, as additional special
servicing compensation in accordance with Section 3.11(d), Net Default
Charges (after application pursuant to Section 3.26(c) and (d)) actually
collected that accrued in respect of the Cumberland Place Non-Trust
Mortgage Loan during a period that the Cumberland Place Mortgage Loan was a
Specially Serviced Mortgage Loan or the Cumberland Place Mortgaged Property
was an REO Property;
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(xiii) consistent with the Cumberland Place Co-Lender Agreement, to
pay (first, out of amounts otherwise payable to the Cumberland Place
Non-Trust Mortgage Loan Noteholder, and then out of amounts (exclusive of
Default Charges) otherwise payable to the Trust with respect to the
Cumberland Place Trust Mortgage Loan and/or any Cumberland Place REO Trust
Mortgage Loan) itself, the Special Servicer, or any of their respective
members, managers, directors, officers, employees and agents, as the case
may be, any amounts payable to any such Person pursuant to Section 6.03, to
the extent such amounts relate to the Cumberland Place Loan Group;
(xiv) consistent with the Cumberland Place Co-Lender Agreement, to pay
(first, out of amounts otherwise payable to the Cumberland Place Non-Trust
Mortgage Loan Noteholder, and then out of amounts (exclusive of Default
Charges) otherwise payable to the Trust with respect to the Cumberland
Place Trust Mortgage Loan and/or any Cumberland Place REO Trust Mortgage
Loan) for the cost of recording the Cumberland Place Co-Lender Agreement,
if and to the extent that the Special Servicer believes that such recording
is in the best interest of the Trust and/or the Cumberland Place Non-Trust
Mortgage Loan Noteholder;
(xv) consistent with the Cumberland Place Co-Lender Agreement, to pay
(out of amounts otherwise payable to the Cumberland Place Non-Trust
Mortgage Loan Noteholder) for the cost of recording this Agreement and the
cost of any corresponding Opinion of Counsel contemplated by Section
11.02(a), insofar as such recordation is for the benefit of the Cumberland
Place Non-Trust Mortgage Loan Noteholder;
(xvi) consistent with the Cumberland Place Co-Lender Agreement, and to
the extent not otherwise included among the payments contemplated by clause
(i) above, to transfer to the Pool Custodial Account all amounts
representing Default Charges actually collected that accrued in respect of
the Cumberland Place Trust Mortgage Loan or any Cumberland Place REO Trust
Mortgage Loan, to the extent such Default Charges were not applied to pay
interest on advances pursuant to any prior clause of this paragraph (and as
provided in Section 3.26(c) and (d));
(xvii) consistent with the Cumberland Place Co-Lender Agreement, and
to the extent not otherwise included among the payments contemplated by
clause (i) above, to transfer to the Pool Custodial Account (out of amounts
otherwise payable to the Cumberland Place Non-Trust Mortgage Loan
Noteholder) all amounts representing Additional Trust Fund Expenses and/or
any other amounts that relate to the Cumberland Place Loan Group, that have
been previously paid out of the Pool Custodial Account pursuant to Section
3.05 and that, if not previously paid out of the Pool Custodial Account in
accordance with Section 3.05, would have been otherwise payable from the
Cumberland Place Custodial Account under this Section 3.05D; and
(xviii) to clear and terminate the Cumberland Place Custodial Account
at the termination of this Agreement pursuant to Section 9.01;
The Master Servicer shall keep and maintain separate accounting
records in connection with any withdrawal from the Cumberland Place Custodial
Account pursuant to clauses (ii) through (xvii) above.
The Master Servicer shall pay to each of the Special Servicer (or to
third-party contractors at the direction of the Special Servicer), the Trustee
and any Fiscal Agent, as applicable,
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from the Cumberland Place Custodial Account, amounts permitted to be paid
thereto from such account promptly upon receipt of a written statement of a
Servicing Officer of the Special Servicer or a Responsible Officer of the
Trustee or any Fiscal Agent, as the case may be, describing the item and amount
to which the Special Servicer (or such third-party contractor), the Trustee or
any Fiscal Agent, as the case may be, is entitled (unless any such payment to
the Special Servicer, the Trustee or any Fiscal Agent, as the case may be, is
clearly required pursuant to this Agreement, in which case a written statement
is not required). The Master Servicer may rely conclusively on any such written
statement and shall have no duty to re-calculate the amounts stated therein. The
parties seeking payment pursuant to this section shall each keep and maintain
separate accounting for the purpose of justifying any request for withdrawal
from the Cumberland Place Custodial Account, on a loan-by-loan basis.
Consistent with Section 4.01 of the Cumberland Place Co-Lender
Agreement, the Master Servicer shall transfer from the Cumberland Place
Custodial Account, out of amounts otherwise payable to the Cumberland Place
Non-Trust Mortgage Loan Noteholder, promptly upon such amounts becoming
available in the Cumberland Place Custodial Account, whether received in respect
of the Cumberland Place Non-Trust Mortgage Loan or any successor Cumberland
Place REO Mortgage Loan with respect thereto, any amounts representing
Additional Trust Fund Expenses and/or any other amounts that relate to the
Cumberland Place Loan Group, that have been previously paid out of the Pool
Custodial Account pursuant to Section 3.05 and that, if not previously paid out
of the Pool Custodial Account in accordance with Section 3.05, would have been
otherwise payable from the Cumberland Place Custodial Account out of the current
collections on the Cumberland Place Non-Trust Mortgage Loan or any successor
Cumberland Place REO Mortgage Loan with respect thereto under this Section
3.05D.
Consistent with the Cumberland Place Co-Lender Agreement, and in
accordance with Sections 4.02(a), 4.02(b) and 4.02(c) of the Cumberland Place
Co-Lender Agreement, the Master Servicer shall, as and when required thereunder,
withdraw from the Cumberland Place Custodial Account and (i) transfer to the
Pool Custodial Account all amounts to be remitted to the Trust as holder of the
Cumberland Place Trust Mortgage Loan and/or any Cumberland Place REO Trust
Mortgage Loan and (ii) remit to the Cumberland Place Non-Trust Mortgage Loan
Noteholder the amounts due and owing to it.
SECTION 3.06. Investment of Funds in the Collection Account, the
Servicing Accounts, the Reserve Accounts, the Defeasance
Deposit Account, the Custodial Accounts, the REO
Accounts, the Interest Reserve Account and the Excess
Liquidation Proceeds Account.
(a) (i) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Defeasance
Deposit Account or a Custodial Account (any of the foregoing accounts listed in
this clause (i), a "Master Servicer Account"), (ii) the Special Servicer may
direct in writing any depository institution maintaining an REO Account, and
(iii) the Trustee may direct (pursuant to a standing order or otherwise) any
depository institution maintaining the Collection Account, the Interest Reserve
Account or the Excess Liquidation Proceeds Account (any of the foregoing
accounts listed in this clause (iii), a "Trustee Account"; and any of the Master
Servicer Accounts, the REO Accounts and Trustee Accounts, an "Investment
Account"), to invest, or if it is such depository institution, may itself
invest, the funds held therein in one or more Permitted Investments bearing
interest or sold at a discount, and maturing, unless payable on demand, (x) no
later than the
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Business Day immediately preceding the next succeeding date on which such funds
are required to be withdrawn from such account pursuant to this Agreement or (y)
solely in the case of a Trustee Account, if and to the extent that the
depository institution maintaining such Trustee Account is the obligor on such
investment, no later than the date on which such funds are required to be
withdrawn from such account pursuant to this Agreement (but in any event prior
to distributions on the Certificates or any transfers to another Trustee Account
being made on or before the related Distribution Date); provided that in the
case of any Servicing Account, any Reserve Account or the Defeasance Deposit
Account, such investment direction shall be subject to the related loan
documents and applicable law.
All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee (in its capacity as such) and, in the case of a
Permitted Investment in any Investment Account solely related to a Serviced Loan
Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s). The
Master Servicer (with respect to Permitted Investments of amounts in the Master
Servicer Accounts) and the Special Servicer (with respect to Permitted
Investments of amounts in the REO Accounts), on behalf of the Trustee and, in
the case of any Investment Account solely related to a Serviced Loan
Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), or the
Trustee in its capacity as such (in the case of any Trustee Account), shall (i)
be the "entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is a
"certificated security", "uncertificated security" or "deposit account". The
Trustee hereby designates the Master Servicer (with respect to Permitted
Investments of amounts in the Master Servicer Accounts) and the Special Servicer
(with respect to Permitted Investments of amounts in the REO Accounts), as
applicable, as the Person that shall be the "entitlement holder" and maintain
"control" as set forth under clauses (i) and (ii) above. For purposes of this
Section 3.06(a), (i) the terms "entitlement holder", "security entitlement",
"control" (except with respect to deposit accounts), "certificated security" and
"uncertificated security" shall have the meanings given such terms in Revised
Article 8 (1994 Revision) of the UCC, and the terms "control" (with respect to
deposit accounts) and "deposit account" shall have the meanings given such terms
in Revised Article 9 (1998 Revision) of the UCC, and (ii) "control" of any
Permitted Investment in any Investment Account by the Master Servicer or the
Special Servicer shall constitute "control" by a Person designated by, and
acting on behalf of, the Trustee and, in the case of any Investment Account
solely related to a Serviced Loan Combination, the related Serviced Non-Trust
Mortgage Loan Noteholder(s), for purposes of Revised Article 8 (1994 Revision)
of the UCC or Revised Article 9 (1998 Revision) of the UCC, as applicable. If
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Master Servicer (in the case of any
Master Server Account), the Special Servicer (in the case of the REO Accounts)
or the Trustee (in the case of any Trustee Account) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount
equal to at least the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the
Trustee, as the case may be, that such Permitted Investment would
not constitute a Permitted Investment in respect of funds
thereafter on deposit in the Investment Account.
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(b) Whether or not the Master Servicer directs the investment of funds
in any of the Master Servicer Accounts, interest and investment income realized
on funds deposited therein, to the extent of the Net Investment Earnings, if
any, for each such Investment Account for each related Investment Period (and,
in the case of Servicing Accounts, Reserve Accounts and the Defeasance Deposit
Account, to the extent not otherwise payable to Mortgagors under applicable law
or the related loan documents), shall be for the sole and exclusive benefit of
the Master Servicer and shall be subject to its withdrawal in accordance with
Section 3.03(a), 3.03(d), 3.04(a), 3.04A(b), 3.04B(b), 3.04C(b), 3.04D(b),
3.05(a), 3.05A, 3.05B, 3.05C or 3.05D, as applicable. Whether or not the Special
Servicer directs the investment of funds in any of the REO Accounts, interest
and investment income realized on funds deposited therein, to the extent of the
Net Investment Earnings, if any, for such Investment Account for each related
Investment Period, shall be for the sole and exclusive benefit of the Special
Servicer and shall be subject to its withdrawal in accordance with Section
3.16(b). Whether or not the Trustee directs the investment of funds in any of
the Trustee Accounts, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for such
Investment Account for each related Investment Period, shall be for the sole and
exclusive benefit of the Trustee and shall be subject to its withdrawal in
accordance with Section 3.04(c), 3.04(d) or 3.05(b), as the case may be. If any
loss shall be incurred in respect of any Permitted Investment on deposit in any
Investment Account, the Master Servicer (in the case of (i) the Servicing
Accounts, the Reserve Accounts and the Defeasance Deposit Account (except to the
extent that any investment of funds with respect thereto is at the direction of
a Mortgagor in accordance with the related loan documents or applicable law) and
(ii) the Custodial Accounts), the Special Servicer (in the case of the REO
Accounts) and the Trustee (in the case of any Trustee Account) shall promptly
deposit therein from its own funds, without right of reimbursement, no later
than the end of the related Investment Period, during which such loss was
incurred, the amount of the Net Investment Loss, if any, for such Investment
Account for such Investment Period. Notwithstanding any of the foregoing
provisions of this Section 3.06, no party shall be required under this Agreement
to deposit any loss on a deposit of funds in an Investment Account if such loss
is incurred solely as a result of the insolvency of the federal or state
chartered depository institution or trust company with which such deposit was
maintained so long as such depository institution or trust company satisfied the
conditions set forth in the definition of "Eligible Account" at the time such
deposit was made and also as of a date no earlier than 30 days prior to the
insolvency.
(c) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may, and subject to Section 8.02, upon the request of
the Majority Controlling Class Certificateholder(s), shall take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Available Distribution Amount and the Master Servicer Remittance Amount,
the amounts so invested shall be deemed to remain on deposit in such Investment
Account.
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SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage; Environmental Insurance.
(a) The Master Servicer shall use reasonable efforts, consistent with
the Servicing Standard, to cause to be maintained for each Mortgaged Property
that secures a Serviced Mortgage Loan and is not an REO Property, all insurance
coverage as is required under the related Mortgage (except to the extent that
the failure to maintain such insurance coverage is an Acceptable Insurance
Default); provided that, if and to the extent that any such Mortgage permits the
holder thereof any discretion (by way of consent, approval or otherwise) as to
the insurance coverage that the related Mortgagor is required to maintain, the
Master Servicer or Special Servicer, as the case may be, shall exercise such
discretion in a manner consistent with the Servicing Standard; and provided,
further, that, if and to the extent that a Mortgage so permits, the Master
Servicer or Special Servicer, as the case may be, shall use reasonable efforts
to require the related Mortgagor to obtain the required insurance coverage from
Qualified Insurers that shall have a "claims paying ability" or "financial
strength" rating, as applicable, of at least "A" from S&P and "A3" from Xxxxx'x
(if then rated by Xxxxx'x, and if not then rated by Xxxxx'x, then an equivalent
rating to a rating of "A3" by Xxxxx'x by at least one nationally recognized
statistical rating agency besides S&P) (or, in the case of any such Rating
Agency, such lower rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates or, if applicable, any class of related
Pari Passu Non-Trust Mortgage Loan Securities rated by such Rating Agency, as
evidenced in writing by such Rating Agency); and provided, further, that the
Master Servicer shall cause to be maintained, from Qualified Insurers having a
"claims paying ability" or "financial strength" rating, as applicable, of at
least "A" from S&P and "A3" from Xxxxx'x (if then rated by Xxxxx'x, and if not
then rated by Xxxxx'x, then an equivalent rating to a rating of "A3" by Xxxxx'x
by at least one nationally recognized statistical rating agency besides S&P)
(or, in the case of any such Rating Agency, such lower rating as will not result
in an Adverse Rating Event with respect to any Class of Certificates or, if
applicable any class of related Pari Passu Non-Trust Mortgage Loan Securities
rated by such Rating Agency, as evidenced in writing by such Rating Agency), for
any such Mortgaged Property any such insurance that the related Mortgagor is
required but fails to maintain, but only to the extent that (i) the Trustee (as
mortgagee of record on behalf of the Certificateholders or, in the case of a
Mortgaged Property that secures a Serviced Loan Combination, the
Certificateholders and the related Non-Trust Mortgage Loan Noteholder(s)) has an
insurable interest, and (ii) either (A) such insurance is available at a
commercially reasonable rate, or (B) solely in the case of all-risk insurance or
other insurance that covers losses from acts of terrorism, the failure by the
Mortgagor to maintain such insurance coverage has not been determined by the
Special Servicer to constitute an Acceptable Insurance Default. The Somerset
Collection Controlling Party (in the case of the Somerset Collection Mortgaged
Property), the Cumberland Place Controlling Party (in the case of the Cumberland
Place Mortgaged Property) or the Controlling Class Representative (in the case
of any other Mortgaged Property) may request that earthquake insurance be
secured for a Mortgaged Property (other than the GIC Office Mortgaged
Properties) by the related Mortgagor, to the extent such insurance may be
obtained at a commercially reasonable price and provided the related loan
documents and applicable law give the mortgagee the right to request such
insurance coverage and such loan documents require the Mortgagor to obtain
earthquake insurance at the request of the mortgagee. Subject to Section
3.17(a), the Special Servicer, in accordance with the Servicing Standard, shall
also cause to be maintained for each Administered REO Property no less insurance
coverage than was previously required of the Mortgagor under the related
Mortgage; provided that such insurance is available at commercially reasonable
rates and the subject hazards are at the time commonly insured against for
properties similar to the subject Administered REO Property located in or around
the region in which such Administered REO Property is located (or,
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in the case of all-risk insurance or other insurance that covers acts of
terrorism, either such insurance is available at a commercially reasonable rate
or, based upon due inquiry in accordance with the Servicing Standard, the
subject hazards are at the time commonly insured against for properties similar
to the subject Administered REO Property located in or around the region in
which such Administered REO Property is located); and provided, further, that
all such insurance shall be obtained from Qualified Insurers that shall have a
"claims paying ability" or "financial strength" rating, as applicable, of at
least "A" from S&P and "A2" from Xxxxx'x (or, in the case of either Rating
Agency, such lower rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates or, if applicable, any class of Pari Passu
Non-Trust Mortgage Loan Securities rated by such Rating Agency, as evidenced in
writing by such Rating Agency). All such insurance policies shall contain (if
they insure against loss to property and do not relate to an REO Property) a
"standard" mortgagee clause, with loss payable to the Master Servicer (in the
case of insurance maintained in respect of Serviced Mortgage Loans, including
Specially Serviced Mortgage Loans), and shall be in the name of the Special
Servicer (in the case of insurance maintained in respect of Administered REO
Properties), on behalf of the Trustee.
Any amounts collected by the Master Servicer or the Special Servicer
under any such policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or REO Property or amounts to be
released to the related Mortgagor, in each case subject to the rights of any
tenants and ground lessors, as the case may be, and in each case in accordance
with the terms of the related Mortgage and the Servicing Standard) shall be
deposited in the applicable Custodial Account in accordance with Section
3.04(a), 3.04A(a), 3.04B(a), 3.04C(a) or 3.04D(a), as applicable, in the case of
amounts received in respect of a Serviced Mortgage Loan, or in the applicable
REO Account in accordance with Section 3.16(b), in the case of amounts received
in respect of an Administered REO Property. Any cost incurred by the Master
Servicer or the Special Servicer in maintaining any such insurance (including
any earthquake insurance maintained at the request of the Somerset Collection
Controlling Party, the Cumberland Place Controlling Party or the Controlling
Class Representative, as applicable) shall not, for purposes hereof, including
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Serviced Mortgage
Loan(s) or REO Mortgage Loan(s), notwithstanding that the terms of such loan so
permit, but shall be recoverable by the Master Servicer or the Special Servicer,
as applicable, as a Servicing Advance.
(b) If either the Master Servicer or the Special Servicer shall obtain
and maintain, or cause to be obtained and maintained, a blanket policy or master
force placed policy insuring against hazard losses on all of the Serviced
Mortgage Loans and/or Administered REO Properties that it is required to service
and administer, then, to the extent such policy (i) is obtained from a Qualified
Insurer having (or whose obligations are guaranteed or backed, in writing, by an
entity having) a "claims paying ability" or "financial strength" rating, as
applicable, of at least "A" from S&P and "A3" from Xxxxx'x (if then rated by
Xxxxx'x, and if not then rated by Xxxxx'x, then a rating of "A:IX" or better by
A.M. Best's Key Rating Guide or an equivalent rating to a rating of "A3" from
Xxxxx'x by at least one nationally recognized statistical rating agency besides
S&P) (or, in the case of either Rating Agency, such lower rating as will not
result in an Adverse Rating Event with respect to any Class of Certificates or,
if applicable, any class of related Pari Passu Non-Trust Mortgage Loan
Securities rated by such Rating Agency, as evidenced in writing by such Rating
Agency), and (ii) provides protection equivalent to the individual policies
otherwise required, then the Master Servicer or the Special Servicer, as the
case may be, shall conclusively be deemed to have satisfied its obligation to
cause hazard insurance to be maintained on the related Mortgaged Properties
and/or subject Administered REO Properties. Such
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blanket policy or master force placed policy may contain a deductible clause
(not in excess of a customary amount), in which case the Master Servicer or the
Special Servicer, as appropriate, shall, if there shall not have been maintained
on the related Mortgaged Property or subject Administered REO Property an
individual hazard insurance policy complying with the requirements of Section
3.07(a), and there shall have been one or more losses that would have been
covered by such individual policy, promptly deposit into the applicable
Custodial Account from its own funds the amount not otherwise payable under the
blanket policy or master force placed policy because of the deductible clause
therein, to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Serviced Mortgage Loan (or in the
absence of any such deductible limitation, the deductible limitation for an
individual policy which is consistent with the Servicing Standard). The Master
Servicer or the Special Servicer, as appropriate, shall prepare and present, on
behalf of itself, the Trustee, the Certificateholders and, in the case of a
Mortgaged Property that secures a Serviced Loan Combination, the related
Non-Trust Mortgage Loan Noteholder(s), claims under any such blanket policy or
master force placed policy in a timely fashion in accordance with the terms of
such policy.
(c) Subject to the third paragraph of this Section 3.07(c), each of
the Master Servicer and the Special Servicer shall at all times during the term
of this Agreement (or, in the case of the Special Servicer, at all times during
the term of this Agreement in which Specially Serviced Mortgage Loans and/or
Administered REO Properties are part of the Trust Fund) keep in force with
Qualified Insurers having (or whose obligations are guaranteed or backed, in
writing, by entities having) a "claims paying ability" or "financial strength"
rating, as applicable, of at least "A" from S&P and "Baa3" from Xxxxx'x (or, if
not then rated by Xxxxx'x, then at least "A:IX" by A.M. Best's Key Rating Guide)
(or, in the case of either Rating Agency, such lower rating as will not result
in an Adverse Rating Event with respect to any Class of Certificates or, if
applicable, any class of related Pari Passu Non-Trust Mortgage Loan Securities
rated by such Rating Agency, as evidenced in writing by such Rating Agency), a
fidelity bond, which fidelity bond shall be in such form and amount as would
permit it to be a qualified Xxxxxx Mae seller-servicer of multifamily mortgage
loans, or in such other form and amount as would not cause an Adverse Rating
Event with respect to any Class of Certificates or, if applicable, any class of
related Pari Passu Non-Trust Mortgage Loan Securities rated by either Rating
Agency (as evidenced in writing from each Rating Agency). Each of the Master
Servicer and the Special Servicer shall be deemed to have complied with the
foregoing provision if an Affiliate thereof has such fidelity bond coverage and,
by the terms of such fidelity bond, the coverage afforded thereunder extends to
the Master Servicer or the Special Servicer, as the case may be.
Subject to the third paragraph of this Section 3.07(c), each of the
Master Servicer and the Special Servicer shall at all times during the term of
this Agreement (or, in the case of the Special Servicer, at all times during the
term of this Agreement in which Specially Serviced Mortgage Loans and/or
Administered REO Properties are part of the Trust Fund) also keep in force with
Qualified Insurers having (or whose obligations are guaranteed or backed, in
writing, by entities having) a "claims paying ability" or "financial strength"
rating, as applicable, of at least "A" from S&P and "Baa3" from Xxxxx'x (or, if
not rated by Xxxxx'x, then at least "A:IX" by A.M. Best's Key Rating Guide) (or,
in the case of either Rating Agency, such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Certificates or, if
applicable, any class of related Pari Passu Non-Trust Mortgage Loan Securities
rated by such Rating Agency, as evidenced in writing by such Rating Agency), a
policy or policies of insurance covering loss occasioned by the errors and
omissions of its officers and employees in connection with its servicing
obligations hereunder, which policy or policies shall be in such form and amount
as would permit it to be a qualified Xxxxxx Xxx seller-servicer of multifamily
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mortgage loans, or in such other form and amount as would not cause an Adverse
Rating Event with respect to any Class of Certificates or, if applicable, any
class of related Pari Passu Non-Trust Mortgage Loan Securities rated by either
Rating Agency (as evidenced in writing from each Rating Agency). Each of the
Master Servicer and the Special Servicer shall be deemed to have complied with
the foregoing provisions if an Affiliate thereof has such insurance and, by the
terms of such policy or policies, the coverage afforded thereunder extends to
the Master Servicer or the Special Servicer, as the case may be.
Notwithstanding the foregoing, for so long as the long-term debt
obligations of the Master Servicer or Special Servicer (or its direct corporate
parent if such parent is responsible for the obligations of the Master Servicer
or Special Servicer, as applicable), as the case may be, are rated at xxxxx "X0"
from Xxxxx'x (if then rated by Xxxxx'x, and if not then rated by Xxxxx'x, then
an equivalent rating by at least one additional nationally recognized
statistical rating agency besides S&P) and "A" from S&P (or, in the case of
either Rating Agency, such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates or, if applicable, any class of
related Pari Passu Non-Trust Mortgage Loan Securities rated by such Rating
Agency, as evidenced in writing by such Rating Agency), such Person may
self-insure with respect to the risks described in this Section 3.07(c).
(d) In the event that either of the Master Servicer or the Special
Servicer has actual knowledge of any event (an "Insured Environmental Event")
giving rise to a claim under any Environmental Insurance Policy in respect of
any Environmentally Insured Mortgage Loan (other than, if applicable, the GIC
Office Trust Mortgage Loan) for which the Mortgagor has not filed a claim or in
respect of an Administered REO Property, the Master Servicer shall notify the
Special Servicer if such Mortgage Loan is a Specially Serviced Mortgage Loan,
and the Special Servicer shall notify the Master Servicer in all cases. Upon
becoming aware of such Insured Environmental Event, the Master Servicer, in the
case of a Performing Serviced Mortgage Loan, and the Special Servicer, in the
case of a Specially Serviced Mortgage Loan or an Administered REO Property, in
accordance with the terms of such Environmental Insurance Policy and the
Servicing Standard, shall timely make a claim thereunder with the appropriate
insurer and shall take such other actions necessary under such Environmental
Insurance Policy in order to realize the full value thereof for the benefit of
the Certificateholders. With respect to each Environmental Insurance Policy in
respect of an Environmentally Insured Mortgage Loan (other than, if applicable,
the GIC Office Trust Mortgage Loan), the Master Servicer (in the case of any
such Mortgage Loan that is a Performing Serviced Mortgage Loan) and the Special
Servicer (in the case of any such Mortgage Loan that is a Specially Serviced
Mortgage Loan or in the case of an Administered REO Property) shall each review
and familiarize itself with the terms and conditions relating to enforcement of
claims and shall, in the event the Master Servicer or the Special Servicer has
actual knowledge of an Insured Environmental Event giving rise to a claim under
such policy, monitor the dates by which any claim must be made or any action
must be taken under such policy to realize the full value thereof for the
benefit of the Certificateholders.
The Master Servicer (in the case of Performing Serviced Mortgage
Loans) and the Special Servicer (in the case of Specially Serviced Mortgage
Loans and Administered REO Properties) shall each abide by the terms and
conditions precedent to payment of claims under the Environmental Insurance
Policies with respect to the Environmentally Insured Mortgage Loans (other than,
if applicable, the GIC Office Trust Mortgage Loan) and take all such actions as
may be required to comply
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with the terms and provisions of such policies in order to maintain such
policies in full force and effect and to make claims thereunder.
In the event that either the Master Servicer or the Special Servicer
receives notice of a termination of any Environmental Insurance Policy with
respect to an Environmentally Insured Mortgage Loan (other than, if applicable,
the GIC Office Trust Mortgage Loan), then the party receiving such notice shall,
within five (5) Business Days after receipt thereof, provide written notice of
such termination to the other such party and the Trustee. Upon receipt of such
notice, the Master Servicer, with respect to a Performing Serviced Mortgage
Loan, or the Special Servicer, with respect to a Specially Serviced Mortgage
Loan or an Administered REO Property, shall address such termination in
accordance with Section 3.07(a). Any legal fees, premiums or other out-of-pocket
costs incurred in accordance with the Servicing Standard in connection with
enforcing the obligations of the Mortgagor under any Environmental Insurance
Policy or a resolution of such termination of an Environmental Insurance Policy
shall be paid by the Master Servicer and shall be reimbursable to it as a
Servicing Advance.
The Master Servicer (with respect to Performing Serviced Mortgage
Loans) and the Special Servicer (with respect to Specially Serviced Mortgage
Loans) shall monitor the actions, and enforce the obligations, of the related
Mortgagor under each Environmentally Insured Mortgage Loan (other than, if
applicable, the GIC Office Trust Mortgage Loan) insofar as such
actions/obligations relate to (i) to the extent consistent with Section 3.07(a),
the maintenance (including, without limitation, any required renewal) of an
Environmental Insurance Policy with respect to the related Mortgaged Property or
(ii) environmental testing or remediation at the related Mortgaged Property.
SECTION 3.08. Enforcement of Alienation Clauses.
(a) If, with respect to any Performing Serviced Mortgage Loan, the
Master Servicer receives a request from a Mortgagor regarding the transfer of
the related Mortgaged Property to, and assumption of such Serviced Mortgage Loan
by, another Person or transfers of certain interests in such Mortgagor, then the
Master Servicer shall promptly obtain relevant information for purposes of
evaluating such request. If the Master Servicer determines, consistent with the
Servicing Standard, to approve such transfer and/or assumption, then the Master
Servicer shall promptly provide to the Special Servicer a copy of such
recommendation (which shall include the reason therefor) and the materials upon
which such recommendation is based. The Special Servicer shall have the right
hereunder, within 15 days of receipt of such recommendation and supporting
materials and any other materials reasonably requested by the Special Servicer,
to reasonably withhold or grant consent to any such request for such transfer
and/or assumption in accordance with the terms of the subject Serviced Mortgage
Loan and this Agreement, including, without limitation, the Servicing Standard;
provided that any grant of consent on the part of the Special Servicer shall be
subject to Section 3.08(d), Section 6.11, Section 6.12, Section 6.13, Section
6.14 and/or Section 6.15, in each case if and as applicable. If the Special
Servicer does not respond within such 15-day period, the Special Servicer's
consent shall be deemed granted. If the Special Servicer consents or is deemed
to have consented to such proposed transfer and/or assumption, the Master
Servicer shall process such request of the related Mortgagor; and, in the case
of a transfer of the related Mortgaged Property to, and assumption of such
Serviced Mortgage Loan by, another Person, the Master Servicer (subject to
Section 3.08(d)) shall be authorized to enter into an assumption or substitution
agreement with the Person, which shall be a Single Purpose Entity, to whom the
related Mortgaged Property has been or is proposed to be conveyed and/or release
the original Mortgagor from
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liability under such Serviced Mortgage Loan and substitute as obligor thereunder
the Person to whom the related Mortgaged Property has been or is proposed to be
conveyed; provided, however, that the Master Servicer shall not enter into any
such agreement to the extent that any terms thereof would result in an Adverse
REMIC Event or Adverse Grantor Trust Event or create any lien on a Mortgaged
Property that is senior to, or on parity with, the lien of the related Mortgage.
The Master Servicer shall notify the Trustee, the Special Servicer, each Rating
Agency, the Controlling Class Representative and, in the case of a Serviced Loan
Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any
assumption or substitution agreement executed pursuant to this Section 3.08(a)
and shall forward thereto a copy of such agreement together with a Review
Package. Subject to the terms of the related loan documents, no assumption of a
Cross-Collateralized Mortgage Loan shall be made without the assumption of all
other Serviced Trust Mortgage Loans making up the related Cross-Collateralized
Group. Further, subject to the terms of the related loan documents and
applicable law, no assumption of a Serviced Mortgage Loan shall be made or
transfer of interest in a Mortgagor approved, unless all costs in connection
therewith, including any arising from seeking Rating Agency confirmation, are
paid by the related Mortgagor.
If any Performing Serviced Mortgage Loan contains express restrictions
on transfers of the related Mortgaged Property and/or transfers of interests in
the related Mortgagor, and if any such proposed transfer has not been approved
pursuant to the preceding paragraph, then the Master Servicer, on behalf of the
Trustee (as mortgagee of record on behalf of the Certificateholders and, in the
case a Mortgaged Property that secures a Serviced Loan Combination, the related
Serviced Non-Trust Mortgage Loan Noteholder(s)), shall, to the extent permitted
by applicable law, enforce such restrictions, unless the Master Servicer has
determined, in its reasonable, good faith judgment, that enforcement of such
restrictions would be a violation of the Servicing Standard (as evidenced by an
Officer's Certificate setting forth the basis for such determination delivered,
together with a Review Package in respect thereof, to the Trustee, each Rating
Agency, the Controlling Class Representative and, with respect to a Serviced
Loan Combination, the related Non-Trust Mortgage Loan Noteholder(s)); provided
that any such waiver of such restrictions shall be subject to Section 3.08(d),
Section 6.11, Section 6.12, Section 6.13, Section 6.14 and/or Section 6.15, in
each case if and as applicable.
(b) If, with respect to a Specially Serviced Mortgage Loan, the Master
Servicer receives a request from a Mortgagor for consent to a transfer of the
related Mortgaged Property and assumption of such Specially Serviced Mortgage
Loan and/or consent to a transfer of interests in the related Mortgagor, the
Master Servicer shall immediately notify the Special Servicer of such request
and deliver to the Special Servicer any documents that the Master Servicer shall
have received regarding the proposed transfer and assumption. Subject to Section
3.08(d), Section 6.11, Section 6.12, Section 6.13, Section 6.14 and/or Section
6.15, in each case if and as applicable, the Special Servicer shall determine
whether to grant such consent or to enforce any restrictions on such transfer
and/or assumption contained in the related loan documents, in accordance with
the Servicing Standard.
Upon consent by the Special Servicer to any proposed transfer of a
Mortgaged Property and assumption by the proposed transferee of the related
Serviced Mortgage Loan pursuant to this Section 3.08(b), the Special Servicer
shall process the request of the related Mortgagor for such transfer and
assumption and shall be authorized to enter into an assumption or substitution
agreement with the Person, which shall be a Single Purpose Entity, to whom the
related Mortgaged Property has been or is proposed to be conveyed and/or release
the original Mortgagor from liability under the related Serviced
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Mortgage Loan and substitute as obligor thereunder the Person to whom the
related Mortgaged Property has been or is proposed to be conveyed; provided,
however, that the Special Servicer shall not enter into any such agreement to
the extent that any terms thereof would result in an Adverse REMIC Event or
Adverse Grantor Trust Event or create any lien on a Mortgaged Property that is
senior to, or on parity with, the lien of the related Mortgage. The Special
Servicer shall notify the Trustee, the Master Servicer, each Rating Agency, the
Controlling Class Representative and, with respect to a Serviced Loan
Combination, the related Serviced Non-Trust Mortgage Loan Noteholder(s), of any
assumption or substitution agreement executed pursuant to this Section 3.08(b)
and shall forward thereto a copy of such agreement. Subject to the terms of the
related loan documents, no assumption of a Cross-Collateralized Mortgage Loan
shall be made without the assumption of all other Serviced Trust Mortgage Loans
making up the related Cross-Collateralized Group. Further, subject to the terms
of the related loan documents and applicable law, no assumption of a Serviced
Mortgage Loan shall be made unless all costs in connection therewith, including
any arising from seeking Rating Agency confirmation, are paid by the related
Mortgagor.
(c) If, with respect to a Performing Serviced Mortgage Loan, the
Master Servicer receives a request from the related Mortgagor regarding a
further encumbrance of the related Mortgaged Property or of an interest in the
related Mortgagor, then the Master Servicer shall promptly obtain relevant
information for purposes of evaluating such request. If the Master Servicer
determines, consistent with the Servicing Standard, to approve such further
encumbrance, then the Master Servicer shall provide to the Special Servicer a
written copy of such recommendation (which shall include the reason therefor)
and the materials upon which such recommendation is based. The Special Servicer
shall have the right hereunder, within 15 days of receipt of such recommendation
and supporting materials and any other materials reasonably requested by the
Special Servicer, to reasonably withhold or, subject to Section 3.08(d) and,
further, subject to the Special Servicer obtaining any consent to the extent
required pursuant to Section 6.11, Section 6.12, Section 6.13, Section 6.14
and/or Section 6.15, in each case if and as applicable, grant consent to any
such request for such further encumbrance of the related Mortgaged Property or
of an interest in the related Mortgagor, as applicable, in accordance with the
terms of such Serviced Mortgage Loan and this Agreement and subject to the
Servicing Standard. If the Special Servicer does not respond within such 15-day
period, such party's consent shall be deemed granted. If the Special Servicer
consents or is deemed to have consented to such further encumbrance of the
related Mortgaged Property or of an interest in the related Mortgagor, as
applicable, the Master Servicer shall process such request of the related
Mortgagor. If the Special Servicer does not consent to, and is not deemed to
have consented to, such further encumbrance, then the Master Servicer, on behalf
of the Trustee (as mortgagee of record on behalf of the Certificateholders and,
with respect to a Serviced Loan Combination, the related Serviced Non-Trust
Mortgage Loan Noteholder(s)) shall, to the extent permitted by applicable law,
enforce the restrictions contained in the related loan documents on further
encumbrances of the related Mortgaged Property and/or of an interest in the
related Mortgagor, as applicable, unless the Master Servicer has determined, in
its reasonable, good faith judgment, that failure to waive such restrictions
would be a violation of the Servicing Standard (as evidenced by an Officer's
Certificate setting forth the basis for such determination delivered to the
Trustee and the Special Servicer, each Rating Agency and, with respect to a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)); provided that any such waiver of such restrictions shall be
subject to Section 3.08(d) and Section 6.11, Section 6.12, Section 6.13, Section
6.14 and/or Section 6.15 in each case if and as applicable. To the extent
permitted by the applicable loan documents and applicable law, the Master
Servicer may charge the related Mortgagor (and retain to the extent permitted
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under Section 3.11) a fee in connection with any enforcement or waiver
contemplated in this paragraph of subsection (c).
With respect to any Specially Serviced Mortgage Loan, the Special
Servicer, on behalf of the Trustee (as mortgagee of record on behalf of the
Certificateholders and, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) shall, to the extent permitted by applicable law, enforce the
restrictions contained in the related loan documents on further encumbrances of
the related Mortgaged Property and/or of interests in the related Mortgagor, as
applicable, and shall process all documentation in connection therewith, unless
the Special Servicer has determined, in its reasonable, good faith judgment,
that waiver of such restrictions would be in accordance with the Servicing
Standard (as evidenced by an Officer's Certificate setting forth the basis for
such determination delivered to the Trustee, the Master Servicer, each Rating
Agency and, with respect to a Serviced Loan Combination, the related Serviced
Non-Trust Mortgage Loan Noteholder(s)); provided that any such waiver of such
restrictions shall be subject to Section 3.08(d) and Section 6.11, Section 6.12,
Section 6.13, Section 6.14 and/or Section 6.15, in each case if and as
applicable. To the extent permitted by the applicable loan documents and
applicable law, the Special Servicer may charge the related Mortgagor (and
retain to the extent permitted under Section 3.11) a fee in connection with any
enforcement or waiver contemplated in this paragraph of subsection (c).
(d) Notwithstanding anything to the contrary contained in this Section
3.08, but subject to the related loan documents and applicable law, (A) (i) if
the then unpaid principal balance of the subject Serviced Trust Mortgage Loan is
at least equal to $20,000,000, then neither the Master Servicer nor the Special
Servicer shall waive any restrictions contained in the related Mortgage on
transfers of the related Mortgaged Property or on transfers of interests in the
related Mortgagor, and (ii) if (w) the then unpaid principal balance of the
subject Serviced Trust Mortgage Loan is at least equal to 2% of the then
aggregate principal balance of the Mortgage Pool or (x) the subject Serviced
Trust Mortgage Loan is then one of the ten largest Trust Mortgage Loans in the
Mortgage Pool or (y) the aggregate loan-to-value ratio of the subject Serviced
Trust Mortgage Loan (together with any additional loans that would further
encumber the related Mortgaged Property and/or interests in the related
Mortgagor) would be equal to or greater than 85% or (z) the aggregate debt
service coverage ratio of the related Mortgaged Property (taking into account
any additional loans that would further encumber the related Mortgaged Property
and/or interests in the related Mortgagor) would be less than 1.20x, then
neither the Special Servicer nor the Master Servicer shall waive any
restrictions contained in the related Mortgage on further encumbrances of the
related Mortgaged Property or of interests in the related Mortgagor, unless, in
the case of either (i) or (ii) above, the Special Servicer or the Master
Servicer, as the case may be, shall have received prior written confirmation
from S&P that such action would not result in an Adverse Rating Event with
respect to any Class of Certificates or, if a Serviced Loan Combination is
involved, any class of Pari Passu Non-Trust Mortgage Loan Securities rated by
such Rating Agency, and (B) if the subject Serviced Trust Mortgage Loan is then
one of the ten largest Trust Mortgage Loans in the Mortgage Pool, then neither
the Master Servicer nor the Special Servicer, as applicable, shall waive any
restrictions contained in the related Mortgage on transfers or further
encumbrances of the related Mortgaged Property or on transfers of interests in
the related Mortgagor, unless the Master Servicer or the Special Servicer, as
the case may be, shall have received prior written confirmation from Xxxxx'x
that such action would not result in an Adverse Rating Event with respect to any
Class of Certificates or, if a Serviced Loan Combination is involved, any class
of Pari Passu Non-Trust Mortgage Loan Securities rated by such Rating Agency.
Neither the Master Servicer nor the
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Special Servicer has the authority to perform any of the actions set forth above
in this paragraph with respect to the GIC Office Trust Mortgage Loan. In
connection with any request for rating confirmation from a Rating Agency
pursuant to this Section 3.08(d), the Master Servicer or the Special Servicer,
as the case may be, shall deliver a Review Package to such Rating Agency.
Further, subject to the terms of the related loan documents and applicable law,
no waiver of a restriction contained in the related Mortgage on transfers of the
related Mortgaged Property or interests in the related Mortgagor or on further
encumbrances thereof may be waived by the Master Servicer or the Special
Servicer, as applicable, unless all costs in connection therewith, including any
arising from seeking Rating Agency confirmation, are paid by the related
Mortgagor. To the extent not collected from the related Mortgagor (or from the
Depositor or the UBS Mortgage Loan Seller pursuant to Section 2.03(e)), any
rating agency charges in connection with the foregoing shall be paid by the
Master Servicer as a Servicing Advance.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals; Appraisal Reduction Calculation.
(a) The Special Servicer shall, subject to Sections 3.09(b), 3.09(c),
3.09(d), 6.11, 6.12, 6.13, 6.14 and 6.15, exercise reasonable efforts,
consistent with the Servicing Standard, to foreclose upon or otherwise
comparably convert the ownership of properties securing such of the Specially
Serviced Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments,
including pursuant to Section 3.20; provided that neither the Master Servicer
nor the Special Servicer shall, with respect to any Serviced Mortgage Loan that
constitutes an ARD Mortgage Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Additional Interest (other
than the making of requests for its collection) unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
ARD Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, necessary, appropriate and consistent with the Servicing Standard or
(ii) all other amounts due under such ARD Mortgage Loan have been paid, the
payment of such Additional Interest has not been forgiven in accordance with
Section 3.20 and, in the good faith and reasonable judgment of the Special
Servicer, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated interest accrued on Advances. Subject
to Section 3.11(h), the Special Servicer shall request that the Master Servicer
advance all costs and expenses incurred by it in any such proceedings, and the
Master Servicer shall be entitled to reimbursement therefor as provided in
Section 3.05(a), Section 3.05A, Section 3.05B, Section 3.05C or Section 3.05D,
as applicable. The Special Servicer shall be responsible, consistent with the
Servicing Standard, for determining whether to exercise any rights it may have
under the cross-collateralization and/or cross-default provisions of a
Cross-Collateralized Mortgage Loan. Nothing contained in this Section 3.09 shall
be construed so as to require the Special Servicer, on behalf of the
Certificateholders and, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, on behalf of the affected Serviced Non-Trust Mortgage
Loan Noteholder(s), to make a bid on any Mortgaged Property at a foreclosure
sale or similar proceeding that is in excess of the fair market value of such
property, as determined by the Special Servicer in its reasonable and good faith
judgment taking into account the factors described in Section 3.18 and the
results of any appraisal obtained as provided below in this Section 3.09, all
such bids to be made in a manner consistent with the Servicing Standard.
If and when the Master Servicer or the Special Servicer deems it
necessary and prudent for purposes of establishing the fair market value of any
Mortgaged Property securing a Specially
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Serviced Mortgage Loan, whether for purposes of bidding at foreclosure or
otherwise, it may have an appraisal performed with respect to such property by
an Independent Appraiser or other expert in real estate matters, which appraisal
shall take into account the factors specified in Section 3.18, and the cost of
which appraisal shall be covered by, and be reimbursable as, a Servicing
Advance; provided that if the Master Servicer intends to obtain an appraisal in
connection with the foregoing, the Master Servicer shall so notify the Special
Servicer and consult with the Special Servicer regarding such appraisal.
If any Serviced Mortgage Loan or Serviced Loan Combination becomes a
Required Appraisal Loan, then the Special Servicer shall (i) obtain or conduct,
as applicable, a Required Appraisal within 60 days (or, in the case of the
Xxxxxxxx Place Loan Pair, such shorter time period as may be required under the
Xxxxxxxx Place Co-Lender Agreement) of such occurrence (unless a Required
Appraisal was obtained or conducted, as applicable, with respect to such
Required Appraisal Loan within the prior 12 months and the Special Servicer
reasonably believes, in accordance with the Servicing Standard, that no material
change has subsequently occurred with respect to the related Mortgaged Property
that would draw into question the applicability of such Required Appraisal) and
(ii) obtain or conduct, as applicable, an update of the most recent Required
Appraisal approximately 12 months following the most recent Required Appraisal
or subsequent update thereof for so long as such Serviced Mortgage Loan (or any
successor REO Mortgage Loan with respect thereto) or such Serviced Loan
Combination, as the case may be, remains a Required Appraisal Loan. The Special
Servicer shall deliver copies of all such Required Appraisals and updated
Required Appraisals to the Trustee, the Master Servicer and, in the case of a
Mortgaged Property that secures a Serviced Loan Combination, the related
Non-Trust Mortgage Loan Noteholder(s), in each such case, promptly following the
Special Servicer's receipt of the subject appraisal, and, upon request, to the
Controlling Class Representative. Based on each such Required Appraisal and
updated Required Appraisal, the Special Servicer shall (monthly, on each
Determination Date, until the subject Required Appraisal Loan ceases to be such)
calculate and notify the Trustee, the Master Servicer, the Controlling Class
Representative, and, in the case of any Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s), of any resulting Appraisal Reduction Amount in respect of the
subject Required Appraisal Loan. Such calculations by the Special Servicer shall
be subject to review and confirmation by the Master Servicer, provided that the
Master Servicer may rely on any information provided by the Special Servicer.
The Master Servicer shall, at the direction of the Special Servicer, advance the
cost of each such Required Appraisal and updated Required Appraisal; provided,
however, that such expense will be subject to reimbursement to the Master
Servicer as a Servicing Advance out of the related Custodial Account pursuant to
Section 3.05(a), Section 3.05A, Section 3.05B, Section 3.05C or Section 3.05D,
as applicable. At any time that an Appraisal Reduction Amount exists with
respect to any Required Appraisal Loan, the Somerset Collection Controlling
Party (in the case of the Somerset Collection Loan Group), the Xxxxxxxx Place
Non-Trust Mortgage Loan Majority Noteholder and, if a Xxxxxxxx Place Threshold
Event has occurred, the Controlling Class Representative (in the case of the
Xxxxxxxx Place Loan Pair), the Cumberland Place Controlling Party (in the case
of the Cumberland Place Loan Pair) or the Controlling Class Representative (in
all other cases), as applicable, may, at its own expense, obtain and deliver to
the Master Servicer, the Special Servicer and the Trustee an appraisal that is
reasonably satisfactory to the Special Servicer and satisfies the requirements
of a "Required Appraisal", and upon the written request of the Somerset
Collection Controlling Party, the Xxxxxxxx Place Non-Trust Mortgage Loan
Majority Noteholder, the Cumberland Place Controlling Party or the Controlling
Class Representative, as applicable, the Special Servicer shall recalculate the
Appraisal Reduction Amount in respect of such Required Appraisal Loan based on
such appraisal delivered by such party and shall notify the Trustee, the Master
Servicer, the Controlling Class Representative and, as
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appropriate, the Somerset Collection Controlling Party (in the case of a
Somerset Collection Mortgage Loan), the Xxxxxxxx Place Non-Trust Mortgage Loan
Majority Noteholder (in the case of a Xxxxxxxx Place Mortgage Loan) and the
Cumberland Place Controlling Party (in the case of a Cumberland Place Mortgage
Loan), of such recalculated Appraisal Reduction Amount.
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Certificateholders (and, in the case of a Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) under such circumstances, in such manner or pursuant to such
terms as would, in the reasonable, good faith judgment of the Special Servicer
(exercised in accordance with the Servicing Standard), (i) cause such Mortgaged
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (unless the portion of such Mortgaged Property
that is not treated as "foreclosure property" and that is held by REMIC I at any
given time constitutes not more than a de minimis amount of the assets of REMIC
I, within the meaning of Treasury regulations section 1.860D-1(b)(3)(i) and
(ii)), or (ii) except as permitted by Section 3.17(a), subject the Trust Fund to
the imposition of any federal income taxes under the Code. Subject to the
foregoing, however, a Mortgaged Property may be acquired through a single member
limited liability company if the Special Servicer determines that such an action
is appropriate to protect the Trust (and, in the case of a Mortgaged Property
that secures a Serviced Loan Combination, the related Non-Trust Mortgage Loan
Noteholder(s)) from potential liability.
In addition, the Special Servicer shall not acquire any personal
property pursuant to this Section 3.09 unless either:
(i) such personal property is, in the reasonable, good faith
judgment of the Special Servicer (exercised in accordance with the
Servicing Standard), incident to real property (within the meaning of
Section 856(e)(1) of the Code) so acquired by the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which shall be covered by, and be reimbursable as, a
Servicing Advance) to the effect that the holding of such personal property
as part of the Trust Fund will not cause the imposition of a tax on any
REMIC Pool under the REMIC Provisions or cause any REMIC Pool to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trustee (and, in the case of a Mortgaged Property that secures a Serviced Loan
Combination, on behalf of the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), obtain title to a Mortgaged Property by foreclosure, deed in
lieu of foreclosure or otherwise, or take any other action with respect to any
Mortgaged Property, if, as a result of any such action, the Trustee, on behalf
of the Certificateholders (and, in the case of a Mortgaged Property that secures
a Serviced Loan Combination, on behalf of the related Serviced Non-Trust
Mortgage Loan Noteholder(s)), could, in the reasonable, good faith judgment of
the Special Servicer, exercised in accordance with the Servicing Standard, be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law (a "potentially responsible party"), unless such action is
consistent with Section 6.11, Section 6.12, Section 6.13, Section 6.14 and/or
Section 6.15, in each case if and as applicable, and the Special Servicer has
previously determined (as evidenced by an Officer's Certificate
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to such effect delivered to the Trustee (and, in the case of a Mortgaged
Property that secures a Serviced Loan Combination, on behalf of the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) that shall specify all of the
bases for such determination), in accordance with the Servicing Standard and
based on an Environmental Assessment of such Mortgaged Property performed by an
Independent Person, who regularly conducts Environmental Assessments, within six
months prior to any such acquisition of title or other action (a copy of which
Environmental Assessment shall be delivered to the Trustee, the Master Servicer
and, in the case of a Mortgaged Property that secures a Serviced Loan
Combination, on behalf of the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would (taking into
account the coverage provided under any related Environmental Insurance
Policy) maximize the recovery on the related Serviced Mortgage Loan to the
Certificateholders (or, if a Serviced Loan Combination is involved, to the
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), as a collective whole, on a present value basis (the
relevant discounting of anticipated collections that will be distributable
to Certificateholders (or, if a Serviced Loan Combination is involved, to
the Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), as a collective whole, to be performed at the related
Mortgage Rate(s)) to acquire title to or possession of the Mortgaged
Property and to take such actions as are necessary to bring the Mortgaged
Property into compliance therewith in all material respects; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any applicable
environmental laws and regulations or, if such circumstances or conditions
are present for which any such action could reasonably be expected to be
required, that it would (taking into account the coverage provided under
any related Environmental Insurance Policy) maximize the recovery on the
related Serviced Mortgage Loan to the Certificateholders (or, if a Serviced
Loan Combination is involved, to the Certificateholders and the related
Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, on
a present value basis (the relevant discounting of anticipated collections
that will be distributable to Certificateholders (or, if a Serviced Loan
Combination is involved, to the Certificateholders and the related Serviced
Non-Trust Mortgage Loan Noteholder(s)), as a collective whole, to be
performed at the related Mortgage Rate(s)) to acquire title to or
possession of the Mortgaged Property and to take such actions with respect
to the affected Mortgaged Property.
The Special Servicer shall, in good faith, undertake reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment shall be
covered by, and reimbursable as, a Servicing Advance; and if any such
Environmental Assessment so warrants, the Special Servicer shall perform or
cause to be performed such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied (the cost of any
such additional testing also to be covered by, and reimbursable as, a Servicing
Advance). The cost of any remedial, corrective or other further action
contemplated by clause (i) and/or clause (ii) of the preceding paragraph, shall
be payable out of the related Custodial Account pursuant to Section 3.05(a),
Section 3.05A, Section 3.05B, Section 3.05C or Section 3.05D, as applicable (or,
in the case of a
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Mortgaged Property that secures a Serviced Loan Combination, to the extent the
funds in the applicable Loan Combination Custodial Account are insufficient,
shall be advanced by the Master Servicer, subject to Section 3.11(h)).
(d) If the environmental testing contemplated by Section 3.09(c) above
establishes that any of the conditions set forth in clauses (i) and (ii) of the
first sentence thereof has not been satisfied with respect to any Mortgaged
Property securing a defaulted Serviced Mortgage Loan, the Special Servicer shall
take such action as is in accordance with the Servicing Standard (other than
proceeding against the Mortgaged Property). At such time as it deems
appropriate, the Special Servicer may, on behalf of the Trust (and, if a
Serviced Loan Combination is involved, the related Serviced Non-Trust Mortgage
Loan Noteholder(s)), subject to Section 6.11, Section 6.12, Section 6.13,
Section 6.14 and/or Section 6.15, in each case if and as applicable, release all
or a portion of such Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Master Servicer, the
Underwriters, the Trustee and, if a Serviced Loan Combination is involved, the
related Non-Trust Mortgage Loan Noteholder(s), monthly in writing as to any
actions taken by the Special Servicer with respect to any Mortgaged Property
that represents security for a Specially Serviced Mortgage Loan as to which the
environmental testing contemplated in Section 3.09(c) above has revealed that
any of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof has not been satisfied, in each case until the earlier to occur of
satisfaction of all such conditions and release of the lien of the related
Mortgage on such Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, with respect to any Specially Serviced
Mortgage Loan, the advisability of seeking to obtain a deficiency judgment if
the state in which the related Mortgaged Property is located and the terms of
the affected Serviced Mortgage Loan permit such an action, and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable (the cost of which undertaking shall be covered by, and be
reimbursable as, a Servicing Advance).
(g) The Master Servicer shall, with the reasonable cooperation of the
Special Servicer, prepare and file information returns with respect to the
receipt of mortgage interest received with respect to any Mortgaged Property
(other than the GIC Office Mortgaged Properties) required by Section 6050H of
the Code and the reports of foreclosures and abandonments of any Mortgaged
Property (other than the GIC Office Mortgaged Properties) and the information
returns relating to cancellation of indebtedness income with respect to any
Mortgaged Property required by Sections 6050J and 6050P of the Code. Such
reports shall be in form and substance sufficient to meet the reporting
requirements imposed by Sections 6050H, 6050J and 6050P of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Specially Serviced Mortgage Loan or
Administered REO Property, it shall promptly notify the Trustee, the Master
Servicer and, if a Serviced Loan Combination is involved, the related Serviced
Non-Trust Mortgage Loan Noteholder(s). The Special Servicer shall maintain
accurate records, prepared by a Servicing Officer, of each such Final Recovery
Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee, the Master Servicer and, if a Serviced Loan Combination is
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involved, the related Serviced Non-Trust Mortgage Loan Noteholder(s), no later
than the seventh Business Day following such Final Recovery Determination.
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage
Files.
(a) Upon the payment in full of any Serviced Mortgage Loan, or the
receipt by the Master Servicer or the Special Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Master Servicer or the Special Servicer shall promptly notify the Trustee and
any related Custodian (and, in the case of a Serviced Non-Trust Mortgage Loan,
the related Serviced Non-Trust Mortgage Loan Noteholder) by a certification
(which certification shall be in the form of a Request for Release in the form
of Exhibit D-1 attached hereto and shall be accompanied by the form of a release
or discharge and shall include a statement to the effect that all amounts
received or to be received in connection with such payment which are required to
be deposited in the applicable Custodial Account pursuant to Section 3.04(a),
Section 3.04A(a), Section 3.04B(a), Section 3.04C(a) or Section 3.04D(a), as
applicable, have been or will be so deposited) of a Servicing Officer (a copy of
which certification shall be delivered to the Special Servicer) and shall
request delivery to it of the related Mortgage File and, in the case of a
Serviced Non-Trust Mortgage Loan, the original of the Mortgage Note for such
Serviced Non-Trust Mortgage Loan. Upon receipt of such certification and
request, the Trustee shall release, or cause any related Custodian to release,
the related Mortgage File (and, in the case of a Serviced Non-Trust Mortgage
Loan, the Trustee shall cause the related Serviced Non-Trust Mortgage Loan
Noteholder to release the Mortgage Note for such Serviced Non-Trust Mortgage
Loan) to the Master Servicer or Special Servicer and shall deliver to the Master
Servicer or Special Servicer, as applicable, such release or discharge, duly
executed. No expenses incurred in connection with any instrument of satisfaction
or deed of reconveyance shall be chargeable to the Collection Account or any
Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Mortgage Loan, the Master Servicer or the Special
Servicer shall otherwise require any Mortgage File (or any portion thereof) (or
the original of the Mortgage Note for a Serviced Non-Trust Mortgage Loan), the
Trustee, upon request of the Master Servicer and receipt from the Master
Servicer of a Request for Release in the form of Exhibit D-1 attached hereto
signed by a Servicing Officer thereof, or upon request of the Special Servicer
and receipt from the Special Servicer of a Request for Release in the form of
Exhibit D-2 attached hereto, shall release, or cause any related Custodian to
release, such Mortgage File (or such portion thereof) (and, in the case of a
Serviced Non-Trust Mortgage Loan, the Trustee shall cause the related Serviced
Non-Trust Mortgage Loan Noteholder to release the original of the Mortgage Note
for such Non-Trust Mortgage Loan) to the Master Servicer or the Special
Servicer, as the case may be. Upon return of such Mortgage File (or such portion
thereof) to the Trustee or related Custodian (and, if applicable, such original
Mortgage Note for such Serviced Non-Trust Mortgage Loan to the related Serviced
Non-Trust Mortgage Loan Noteholder), or the delivery to the Trustee (and, if
applicable, to the related Serviced Non-Trust Mortgage Loan Noteholder) of a
certificate of a Servicing Officer of the Special Servicer stating that such
Serviced Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the related Custodial Account pursuant to Section 3.04(a), Section
3.04A(a), Section 3.04B(a), Section 3.04C(a) or Section 3.04D(a), as applicable,
have been or will be so deposited, or that the related Mortgaged Property has
become an REO Property, the Request for Release shall be released by the Trustee
or related Custodian to the Master Servicer or the Special Servicer, as
applicable.
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(c) Within seven Business Days (or within such shorter period (but no
less than three (3) Business Days) as execution and delivery can reasonably be
accomplished if the Special Servicer notifies the Trustee (and, in the case of a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) of an exigency) of the Special Servicer's request therefor, the
Trustee shall execute and deliver to the Special Servicer (or the Special
Servicer may execute and deliver in the name of the Trustee (on behalf of the
Certificateholders and, in the case of the a Mortgaged Property that secures a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) based on a limited power of attorney issued in favor of the
Special Servicer pursuant to Section 3.01(b)), in the form supplied to the
Trustee, with respect to any Serviced Mortgage Loan, any court pleadings,
requests for trustee's sale or other documents stated by the Special Servicer to
be reasonably necessary to the foreclosure or trustee's sale in respect of the
related Mortgaged Property or to any legal action brought to obtain judgment
against any Mortgagor on the related Mortgage Note or Mortgage or to obtain a
deficiency judgment, or to enforce any other remedies or rights provided by the
related Mortgage Note or Mortgage or otherwise available at law or in equity or
to defend any legal action or counterclaim filed against the Trust Fund, the
Master Servicer, the Special Servicer or, if applicable, any Serviced Non-Trust
Mortgage Loan Noteholder. Together with such documents or pleadings, the Special
Servicer shall deliver to the Trustee (and, if applicable, any affected Serviced
Non-Trust Mortgage Loan Noteholder) a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee (on behalf of the
Certificateholders and, in the case of a Serviced Loan Combination, also on
behalf of the related Serviced Non-Trust Mortgage Loan Noteholder(s)) will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall, without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Master Servicer's or Special Servicer's, as applicable,
representative capacity, or (ii) take any action with the intent to cause, and
that actually causes, the Trustee to be registered to do business in any state.
(d) If from time to time, pursuant to the terms of the GIC Office
Co-Lender Agreement and the GIC Office Servicing Agreement, and as appropriate
for enforcing the terms of the GIC Office Trust Mortgage Loan, any GIC Office
Servicer or the appropriate GIC Office Non-Trust Mortgage Loan Noteholder
requests delivery to it of the original Mortgage Note for the GIC Office Trust
Mortgage Loan, then the Trustee shall release or cause the release of such
original Mortgage Note to the requesting party or its designee. In connection
with the release of the original Mortgage Note for the GIC Office Trust Mortgage
Loan in accordance with the preceding sentence, the Trustee shall obtain such
documentation (such as a custodial receipt) as is appropriate to evidence the
holding by such GIC Office Servicer or such GIC Office Non-Trust Mortgage Loan
Noteholder as custodian on behalf of and for the benefit of the Trustee.
SECTION 3.11. Servicing Compensation; Payment of Expenses; Certain
Matters Regarding Servicing Advances.
(a) As compensation for its activities hereunder, the Master Servicer
shall be entitled to receive the Master Servicing Fee with respect to each Trust
Mortgage Loan, each REO Trust Mortgage Loan, each Serviced Non-Trust Mortgage
Loan and each successor REO Mortgage Loan with respect to a Serviced Non-Trust
Mortgage Loan. As to each such Mortgage Loan and REO Mortgage
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Loan, the Master Servicing Fee shall: (i) accrue from time to time at the
related Master Servicing Fee Rate on the same principal amount as interest
accrues from time to time on such Mortgage Loan or is deemed to accrue from time
to time on such REO Mortgage Loan; and (ii) be calculated on a 30/360 Basis (or,
in the event that a Principal Prepayment in full or other Liquidation Event
shall occur with respect to any such Mortgage Loan or REO Mortgage Loan on a
date that is not a Due Date, on the basis of the actual number of days to elapse
from and including the most recently preceding related Due Date to but excluding
the date of such Principal Prepayment or Liquidation Event in a month consisting
of 30 days). The Master Servicing Fee with respect to any such Mortgage Loan or
REO Mortgage Loan shall cease to accrue if a Liquidation Event occurs in respect
thereof. Earned but unpaid Master Servicing Fees shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each such Mortgage Loan and REO
Revenues allocable as interest on each such REO Mortgage Loan. The Master
Servicer, on behalf of itself and the holder of the Excess Servicing Strip,
shall be entitled to recover unpaid Master Servicing Fees in respect of any such
Mortgage Loan or REO Mortgage Loan out of that portion of related Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds allocable as recoveries
of interest, to the extent permitted by Section 3.05(a), Section 3.05A, Section
3.05B, Section 3.05C or Section 3.05D, as applicable, and in the case of a Trust
Mortgage Loan or an REO Trust Mortgage Loan, out of such other amounts as may be
permitted by Section 3.05(a). The right to receive the Master Servicing Fee may
not be transferred in whole or in part except in connection with the transfer of
all of the Master Servicer's responsibilities and obligations under this
Agreement. Notwithstanding anything herein to the contrary, no Master Servicing
Fee shall be calculated or payable hereunder based upon or with respect to any
GIC Office Non-Trust Mortgage Loan or successor REO Mortgage Loan (or comparable
deemed mortgage loan) with respect thereto.
Notwithstanding anything herein to the contrary, Midland (and its
successors and assigns) may at its option assign or pledge to any third party or
retain for itself the Excess Servicing Strip (in whole but not in part);
provided that any assignee or pledgee of the Excess Servicing Strip must be a
Qualified Institutional Buyer or Institutional Accredited Investor (other than a
Plan); and provided, further, that no transfer, sale, pledge or other assignment
of the Excess Servicing Strip shall be made unless that transfer, sale, pledge
or other assignment is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws and
is otherwise made in accordance with the Securities Act and such state
securities laws; and provided, further, that in the event of any resignation or
termination of Midland, all or any portion of the Excess Servicing Strip may, to
protect REMIC I against an associated increase in expenses, 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 Sections 6.04
and 7.02 and that requires market rate servicing compensation that, in the case
of each Trust Mortgage Loan and REO Trust Mortgage Loan, accrues at a per annum
rate greater than the excess of the related Master Servicing Fee Rate over the
then related Excess Servicing Fee Rate. Midland and each holder of the Excess
Servicing Strip desiring to effect a transfer, sale, pledge or other assignment
of the Excess Servicing Strip shall, and Midland hereby agrees, and each such
holder of the Excess Servicing Strip by its acceptance of the Excess Servicing
Strip shall be deemed to have agreed, in connection with any transfer of the
Excess Servicing Strip effected by such Person, to indemnify the
Certificateholders, the Trust, the Depositor, the Underwriters, the Trustee, the
Master Servicer, the Certificate Registrar and the Special Servicer against any
liability that may result if such transfer is not exempt from registration
and/or qualification under the Securities Act or other applicable federal and
state securities laws or is not made in accordance with such federal and state
laws or in accordance with the foregoing provisions of this paragraph. By its
acceptance of the Excess Servicing Strip, the holder thereof shall be deemed to
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have agreed (i) to keep all information relating to the Trust and the Trust Fund
and made available to it by the Master Servicer confidential (except as
permitted pursuant to clause (iii) below or, in the case of the Master Servicer,
as contemplated hereby in the performance of its duties and obligations
hereunder), (ii) not to use or disclose such information in any manner that
could result in a violation of any provision of the Securities Act or other
applicable securities laws or that would require registration of the Excess
Servicing Strip or any Non-Registered Certificate pursuant to the Securities
Act, and (iii) not to disclose such information, and to cause its officers,
directors, partners, employees, agents or representatives not to disclose such
information, in any manner whatsoever, in whole or in part, to any other Person
other than such holder's auditors, legal counsel and regulators, except to the
extent such disclosure is required by law, court order or other legal
requirement or to the extent such information is of public knowledge at the time
of disclosure by such holder or has become generally available to the public
other than as a result of disclosure by such holder; provided, however, that
such holder may provide all or any part of such information to any other Person
who is contemplating an acquisition of the Excess Servicing Strip if, and only
if, such Person (x) confirms in writing such prospective acquisition and (y)
agrees in writing to keep such information confidential, not to use or disclose
such information in any manner that could result in a violation of any provision
of the Securities Act or other applicable securities laws or that would require
registration of the Excess Servicing Strip or any Non-Registered Certificates
pursuant to the Securities Act and not to disclose such information, and to
cause its officers, directors, partners, employees, agents or representatives
not to disclose such information, in any manner whatsoever, in whole or in part,
to any other Person other than such Persons' auditors, legal counsel and
regulators (except to the extent provided under clause (iii) above). From time
to time following any transfer, sale, pledge or assignment of the Excess
Servicing Strip, the Person then acting as the Master Servicer shall pay, out of
each amount paid to such Master Servicer as Master Servicing Fees with respect
to any Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be, the
portion of the Excess Servicing Strip attributable to such Trust Mortgage Loan
or REO Trust Mortgage Loan to the holder of the Excess Servicing Strip within
one Business Day following the payment of such Master Servicing Fees to the
Master Servicer, in each case in accordance with payment instructions provided
by such holder in writing to the Master Servicer. The holder of the Excess
Servicing Strip shall not have any rights under this Agreement except as set
forth in the preceding sentences of this paragraph. The Master Servicer shall
pay the Excess Servicing Strip to the holder of the Excess Servicing Strip
(i.e., Midland or any such third party) at such time and to the extent the
Master Servicer is entitled to receive payment of its Master Servicing Fees
hereunder, notwithstanding any resignation or termination of Midland hereunder
(subject to reduction pursuant to the first sentence of this paragraph).
(b) Additional master servicing compensation in the form of (i) Net
Default Charges, charges for beneficiary statements or demands, amounts
collected for checks returned for insufficient funds, and any similar fees
(excluding Prepayment Premiums and Yield Maintenance Charges), in each case to
the extent actually paid by a Mortgagor with respect to any Serviced Mortgage
Loan (or, in the case of Net Default Charges, any Serviced Trust Mortgage Loan)
and accrued during the time that such Serviced Mortgage Loan (or, in the case of
Net Default Charges, such Serviced Trust Mortgage Loan) was a Performing
Serviced Mortgage Loan (or, in the case of Net Default Charges, a Performing
Serviced Trust Mortgage Loan), (ii) 100% of each modification fee, extension fee
or other similar fee actually paid by a Mortgagor with respect to a
modification, consent, extension, waiver or amendment agreed to by the Master
Servicer pursuant to Section 3.20(c) or Section 3.08(c), and 100% of any fee
actually paid by a Mortgagor in connection with a defeasance of a Serviced
Mortgage Loan as contemplated under Section 3.20, and (iii) 50% of any and all
assumption fees and 100% of any and all assumption application fees and other
applicable fees, actually paid by a Mortgagor in accordance with
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the related loan documents, with respect to any assumption or substitution
agreement entered into by the Master Servicer on behalf of the Trust (or, in the
case of a Serviced Loan Combination, on behalf of the Trust and the related
Non-Trust Mortgage Loan Noteholder(s)) pursuant to Section 3.08(a) or paid by a
Mortgagor with respect to any transfer of an interest in a Mortgagor pursuant to
Section 3.08(a), shall be retained by the Master Servicer or promptly paid to
the Master Servicer by the Special Servicer and such additional master servicing
compensation is not required to be deposited in any Custodial Account. The
Master Servicer shall also be entitled to additional master servicing
compensation in the form of (i) Prepayment Interest Excesses Received by the
Trust with respect to the Trust Mortgage Loans; (ii) interest or other income
earned on deposits in the Custodial Accounts in accordance with Section 3.06(b)
(but only to the extent of the Net Investment Earnings, if any, with respect to
such account for each related Investment Period); and (iii) to the extent not
required to be paid to any Mortgagor under applicable law, any interest or other
income earned on deposits in the Servicing Accounts, the Reserve Accounts and
the Defeasance Deposit Account maintained thereby (but only to the extent of the
Net Investment Earnings, if any, with respect to each such account for each
related Investment Period.
With regard to the GIC Office Trust Mortgage Loan, as and to the
extent provided in the GIC Office Servicing Agreement, amounts in the nature of
the foregoing are payable to a GIC Office Servicer, with the exception of
Prepayment Interest Excesses, which are payable to the Master Servicer, as and
to the extent provided in this Agreement.
(c) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Special Servicing Fee with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan that relates to an
Administered REO Property. With respect to each Specially Serviced Mortgage Loan
and each REO Mortgage Loan that relates to an Administered REO Property, for any
calendar month (or portion thereof), the Special Servicing Fee shall: (i) accrue
from time to time at the Special Servicing Fee Rate on the same principal amount
as interest accrues from time to time on such Mortgage Loan or is deemed to
accrue from time to time on such REO Mortgage Loan; and (ii) be calculated on a
30/360 Basis (or, in the event that a Principal Prepayment in full or other
Liquidation Event shall occur with respect to any Specially Serviced Mortgage
Loan or REO Mortgage Loan on a date that is not a Due Date, on the basis of the
actual number of days to elapse from and including the most recently preceding
related Due Date to but excluding the date of such Principal Prepayment or
Liquidation Event, in a month consisting of 30 days and, in the case of any
other partial period that does not run from one Due Date through and including
the day immediately preceding the next Due Date, on the basis of the actual
number of days in such period in a month consisting of 30 days). The Special
Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO
Mortgage Loan shall cease to accrue as of the date a Liquidation Event occurs in
respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid
Special Servicing Fees in respect of Specially Serviced Trust Mortgage Loans
and, to the extent they relate to Administered REO Properties, REO Trust
Mortgage Loans shall be payable monthly out of general collections on the
Mortgage Pool on deposit in the Pool Custodial Account, to the extent permitted
by Section 3.05(a). In addition, earned but unpaid Special Servicing Fees in
respect of a Serviced Loan Combination consisting of Specially Serviced Mortgage
Loans or REO Mortgage Loans shall be payable out of collections on such Loan
Combination on deposit in the applicable Loan Combination Custodial Account, to
the extent permitted pursuant to Section 3.05A, Section 3.05B, Section 3.05C or
Section 3.05D, as applicable. The GIC Office Special Servicer shall be entitled
to the special servicing fee for each Mortgage Loan or REO Mortgage Loan, as
applicable, constituting the GIC Office Loan Group as provided in the GIC Office
Servicing Agreement.
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As further compensation for its services hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan. As to each Corrected Mortgage Loan, subject to the
second following paragraph, the Workout Fee shall be payable from, and shall be
calculated by application of the Workout Fee Rate to, all collections of
principal, interest (other than Default Interest and Additional Interest),
Prepayment Premiums and/or Yield Maintenance Charges received on the subject
Serviced Mortgage Loan for so long as it remains a Corrected Mortgage Loan;
provided that no Workout Fee shall be payable from, or based upon the receipt
of, Liquidation Proceeds collected in connection with the acquisition of any
Mortgage Loan by all the Certificateholders (acting together) in exchange for
all the Certificates pursuant to Section 9.01 or the purchase of any Mortgage
Loan pursuant to Section 3.18, by the Depositor, Xxxxxx Brothers, the Special
Servicer, a Controlling Class Certificateholder or the Master Servicer pursuant
to Section 9.01, by the Depositor pursuant to Section 2.03, by or on behalf of
the UBS Mortgage Loan Seller pursuant to the UBS/Depositor Mortgage Loan
Purchase Agreement, by a Non-Trust Mortgage Loan Noteholder or its designee
pursuant to the related Co-Lender Agreement, or by the holder of a related
mezzanine loan pursuant to a purchase right in connection with a Mortgage Loan
default as set forth in the related intercreditor agreement, or out of any
Insurance Proceeds or Condemnation Proceeds. The Workout Fee with respect to any
Corrected Mortgage Loan will cease to be payable if such Corrected Mortgage Loan
again becomes a Specially Serviced Mortgage Loan or if the related Mortgaged
Property becomes an REO Property; provided that a new Workout Fee will become
payable if and when the particular Serviced Mortgage Loan again becomes a
Corrected Mortgage Loan. If the Special Servicer is terminated or removed or
resigns in accordance with the first sentence of the first paragraph of Section
6.04, it shall retain the right to receive any and all Workout Fees (and the
successor Special Servicer shall not be entitled to any portion of such Workout
Fees) that are payable in respect of:
(i) each Mortgage Loan that became a Corrected Mortgage Loan
during the period that the terminated, removed or resigning Special
Servicer acted as Special Servicer and was still such at the time of such
termination, removal or resignation; and
(ii) each Mortgage Loan that would have been a "Corrected
Mortgage Loan" at the time of such termination, removal or resignation but
for the payment (in accordance with clause (w) of the definition of
"Specially Serviced Mortgage Loan") by the related Mortgagor of the three
consecutive full and timely Monthly Payments under the terms of such
Serviced Mortgage Loan (as such terms may have been changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, extension, waiver or amendment
granted or agreed to by the Master Servicer or the Special Servicer
pursuant to Section 3.20), but only if such three consecutive full and
timely Monthly Payments are in fact made within three months of such
termination, removal or resignation;
in each case until the Workout Fee for any such Serviced Mortgage Loan ceases to
be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive the Liquidation Fee with respect to
each Specially Serviced Mortgage Loan as to which it receives a full, partial or
discounted payoff and, subject to the provisos to the next sentence, each
Specially Serviced Mortgage Loan and Administered REO Property as to which it
receives Net Liquidation Proceeds. As to each such Specially Serviced Mortgage
Loan or Administered REO
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Property, subject to the following paragraph, the Liquidation Fee shall be
payable from, and shall be calculated by application of the Liquidation Fee Rate
to, such full, partial or discounted payoff and/or Net Liquidation Proceeds
(exclusive of any portion of such payoff or proceeds that represents Default
Interest and/or Additional Interest); provided that no Liquidation Fee shall be
payable (i) with respect to any Specially Serviced Mortgage Loan that becomes a
Corrected Mortgage Loan or (ii) from, or based upon the receipt of, Liquidation
Proceeds collected in connection with the acquisition of any Specially Serviced
Mortgage Loan or REO Property by all the Certificateholders (acting together) in
exchange for all the Certificates pursuant to Section 9.01, or the purchase of
any Specially Serviced Mortgage Loan by the Majority Controlling Class
Certificateholder(s) or an assignee thereof or the Special Servicer pursuant to
Section 3.18 (provided that such purchase occurs or derives from a purchase
option exercised by any of the foregoing parties prior to the expiration of the
option periods described in Section 3.18(b)), by the Depositor, Xxxxxx Brothers,
the Special Servicer, a Controlling Class Certificateholder or the Master
Servicer pursuant to Section 9.01, by a Non-Trust Mortgage Loan Noteholder or
its designee pursuant to the related Co-Lender Agreement, by the Depositor
pursuant to Section 2.03 or by or on behalf of the UBS Mortgage Loan Seller
pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement in connection
with a Material Document Defect or a Material Breach (in either such case, prior
to the expiration of the Initial Resolution Period plus the applicable
Resolution Extension Period for the subject Material Document Defect or Material
Breach, as applicable, that gave rise to the particular repurchase obligation)
or by the holder of a related mezzanine loan pursuant to a purchase right in
connection with a Mortgage Loan default as set forth in the related
intercreditor agreement (unless a Liquidation Fee is specifically required to be
paid in connection with such purchase and is actually paid pursuant to the
subject intercreditor agreement); and provided, further, that, in connection
with any purchase by the Depositor pursuant to Section 2.03 or the UBS Mortgage
Loan Seller pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement in
connection with a Material Document Defect or a Material Breach (in either case,
subsequent to the expiration of the Initial Resolution Period plus the
Resolution Extension Period for the subject Material Document Defect or Material
Breach, as applicable, that gave rise to the particular repurchase obligation),
the Liquidation Fee shall equal 1% of the Stated Principal Balance of the
repurchased Trust Mortgage Loan (or, if an REO Property is being repurchased, 1%
of the Stated Principal Balance of the related REO Trust Mortgage Loan).
Notwithstanding the foregoing, any Workout Fee and/or Liquidation Fee
payable in accordance with the two preceding paragraphs with respect to Mortgage
Loans or REO Mortgage Loans that comprise a Serviced Loan Combination shall be
paid from collections received on such Loan Combination on deposit in the
related Loan Combination Custodial Account, to the extent permitted under
Section 3.05A, Section 3.05B, Section 3.05C or Section 3.05D, as applicable.
Notwithstanding anything to the contrary herein, a Liquidation Fee and
a Workout Fee relating to the same Mortgage Loan shall not be paid from the same
proceeds with respect to such Mortgage Loan.
Notwithstanding anything to the contrary herein, the Special Servicer
shall not be entitled to any Special Servicing Fees, Workout Fees or Liquidation
Fees with respect to any Mortgage Loan or REO Mortgage Loan or comparable deemed
mortgage loan comprising the GIC Office Loan Group.
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The Special Servicer's right to receive the Special Servicing Fee, the
Workout Fee and the Liquidation Fee may not be transferred in whole or in part
except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(d) Additional special servicing compensation in the form of (i) Net
Default Charges actually collected with respect to any Serviced Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto that accrued
while the subject loan was a Specially Serviced Trust Mortgage Loan or an REO
Trust Mortgage Loan, (ii) with respect to any Specially Serviced Mortgage Loan,
100% of any and all assumption fees, assumption application fees and other
applicable fees, actually paid by a Mortgagor in accordance with the related
loan documents, with respect to any assumption or substitution agreement entered
into by the Special Servicer on behalf of the Trust (or, in the case of a
Serviced Loan Combination, on behalf of the Trust and the related Serviced
Non-Trust Mortgage Loan Noteholder(s)) pursuant to Section 3.08(b) or paid by a
Mortgagor with respect to any transfer of an interest in a Mortgagor pursuant to
Section 3.08(b), (iii) with respect to any Performing Serviced Mortgage Loan,
50% of any and all assumption fees actually paid by a Mortgagor in accordance
with the related loan documents, with respect to any assumption or substitution
agreement entered into by the Master Servicer on behalf of the Trust (or, in the
case of a Serviced Loan Combination, on behalf of the Trust and the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) pursuant to Section 3.08(a) or
paid by a Mortgagor with respect to any transfer of an interest in a Mortgagor
pursuant to Section 3.08(a), and (iv) any and all modification fees, consent
fees, extension fees and similar fees actually collected on the Serviced
Mortgage Loans that are not otherwise payable to the Master Servicer as
additional master servicing compensation pursuant to Section 3.11(b), shall be
retained by the Special Servicer or promptly paid to the Special Servicer by the
Master Servicer, as the case may be, and shall not be required to be deposited
in any Custodial Account pursuant to Section 3.04(a), Section 3.04A(a), Section
3.04B(a), Section 3.04C(a) or Section 3.04D(a), as applicable. The Special
Servicer shall also be entitled to additional special servicing compensation in
the form of interest or other income earned on deposits in any REO Account, if
established, in accordance with Section 3.06(b) (but only to the extent of the
Net Investment Earnings, if any, with respect to such account for each related
Investment Period).
(e) The Master Servicer and the Special Servicer shall each be
required to pay out of its own funds all expenses incurred by it in connection
with its servicing activities hereunder (including payment of any amounts due
and owing to any of its Sub-Servicers and the premiums for any blanket policy or
the standby fee or similar premium for any master force placed policy obtained
by it insuring against hazard losses pursuant to Section 3.07(b)), if and to the
extent such expenses are not payable directly out of any of the Custodial
Accounts or, in the case of the Special Servicer, any of the REO Accounts, and
neither the Master Servicer nor the Special Servicer shall be entitled to
reimbursement for such expenses except as expressly provided in this Agreement.
(f) If the Master Servicer or Special Servicer is required under any
provision of this Agreement to make a Servicing Advance, but it does not do so
within 15 days after such Advance is required to be made, the Trustee shall, if
it has actual knowledge of such failure on the part of the Master Servicer or
Special Servicer, as the case may be,, give written notice of such failure to,
as applicable, the Master Servicer or the Special Servicer. If such Servicing
Advance is not made by the Master Servicer or the Special Servicer, as
applicable, within three (3) Business Days after such notice is given to the
Master Servicer or the Special Servicer, as the case may be, then (subject to
Section 3.11(h)) the Trustee shall make such Servicing Advance. If the Trustee
fails to make any Servicing Advance required to be
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made under this Agreement, then (subject to Section 3.11(h)) any Fiscal Agent
shall make such Servicing Advance within one (1) Business Day of such failure by
the Trustee and, if so made, the Trustee shall be deemed not to be in default
under this Agreement.
(g) The Master Servicer, the Special Servicer, the Trustee and any
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, compounded annually, accrued on the amount of
each Servicing Advance made thereby (with its own funds) for so long as such
Servicing Advance is outstanding, such interest to be payable: (i) first, in
accordance with Sections 3.05(a) and 3.26, out of any Default Charges on deposit
in the Pool Custodial Account that were collected on or in respect of the
particular Trust Mortgage Loan or REO Trust Mortgage Loan as to which such
Servicing Advance relates (provided that such Default Charges will only be
applied to pay interest accrued on such Servicing Advance through the date that
such Default Charges were received); and (ii) then, if and to the extent that
such Default Charges are insufficient to cover such interest, but not before the
related Advance has been reimbursed pursuant to this Agreement, out of general
collections on the Trust Mortgage Loans and REO Trust Mortgage Loans on deposit
in the Pool Custodial Account; provided that, if such Servicing Advance was made
with respect to a Serviced Loan Combination or any related Mortgaged Property,
then such interest shall first be payable out of amounts on deposit in the
related Loan Combination Custodial Account in accordance with Section 3.05A,
Section 3.05B, Section 3.05C or Section 3.05D, as applicable. The Master
Servicer shall reimburse itself, the Special Servicer, the Trustee or any Fiscal
Agent, as appropriate, in accordance with Section 3.03, Section 3.05(a), Section
3.05A, Section 3.05B, Section 3.05C or Section 3.05D, as applicable, for any
Servicing Advance as soon as practicable after funds available for such purpose
are deposited in the applicable Custodial Account. Notwithstanding the
foregoing, upon a determination that a previously made Servicing Advance is a
Nonrecoverable Servicing Advance, instead of obtaining reimbursement out of
general collections on the Mortgage Pool immediately, any of the Master
Servicer, the Special Servicer, the Trustee or any Fiscal Agent, as applicable,
may, in its sole discretion, elect to obtain reimbursement for such
Nonrecoverable Servicing Advance over a period of time (not to exceed 12 months
or such longer period of time as is approved in writing by the Controlling Class
Representative) and the unreimbursed portion of such Servicing Advance will
accrue interest at the Reimbursement Rate in effect from time to time. At any
time after such a determination to obtain reimbursement over time in accordance
with the preceding sentence, the Master Servicer, the Special Servicer, the
Trustee or any Fiscal Agent, as applicable, may, in its sole discretion, decide
to obtain reimbursement immediately. The fact that a decision to recover such
Nonrecoverable Servicing Advance over time, or not to do so, benefits some
Classes of Certificateholders to the detriment of other Classes shall not
constitute a violation of the Servicing Standard by the Master Servicer, or a
breach of any fiduciary duty owed to the Certificateholders by the Trustee or
any Fiscal Agent, or a breach of any other contractual obligation owed to the
Certificateholders by any party to this Agreement.
(h) Notwithstanding anything herein to the contrary, none of the
Master Servicer, the Special Servicer, the Trustee or any Fiscal Agent shall be
required to make out of its own funds any Servicing Advance that would, if made,
constitute a Nonrecoverable Servicing Advance. The determination by the Master
Servicer or the Special Servicer that it has made (or, in the case of the
Special Servicer, that the Master Servicer has made (subject to clause (1) of
the definition of "Nonrecoverable Servicing Advance")) a Nonrecoverable
Servicing Advance or that any proposed Servicing Advance, if made, would
constitute a Nonrecoverable Servicing Advance, shall be made in accordance with
the Servicing Standard and shall be evidenced by an Officer's Certificate
delivered promptly to the Trustee and the Depositor (and, in the case of a
Servicing Advance with respect to a
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Serviced Loan Combination, the related Non-Trust Mortgage Loan Noteholder(s)),
setting forth the basis for such determination, together with a copy of any
appraisal of the related Mortgaged Property or REO Property, as the case may be
(which appraisal shall be an expense of the Trust, shall take into account the
factors specified in Section 3.18) and shall have been conducted by an
Independent Appraiser in accordance with the standards of the Appraisal
Institute within the twelve months preceding such determination of
nonrecoverability), and further accompanied by related Mortgagor operating
statements and financial statements, budgets and rent rolls of the related
Mortgaged Property (to the extent available and/or in the Master Servicer's or
the Special Servicer's possession) and any engineers' reports, environmental
surveys or similar reports that the Master Servicer or the Special Servicer may
have obtained and that support such determination. If the Master Servicer
intends to obtain an appraisal in connection with the foregoing, the Master
Servicer shall so notify the Special Servicer and consult with the Special
Servicer regarding such appraisal. The Trustee and any Fiscal Agent shall be
entitled to rely, conclusively, on any determination by the Master Servicer or
the Special Servicer that a Servicing Advance, if made, would be a
Nonrecoverable Servicing Advance; provided, however, that if the Master Servicer
or the Special Servicer has failed to make a Servicing Advance for reasons other
than a determination by the Master Servicer or the Special Servicer, as
applicable, that such Servicing Advance would be a Nonrecoverable Advance, the
Trustee or any Fiscal Agent, as applicable, shall make such Servicing Advance
within the time periods required by Section 3.11(f) unless the Trustee or any
Fiscal Agent, in good faith, makes a determination that such Servicing Advance
would be a Nonrecoverable Advance.
(i) Notwithstanding anything set forth herein to the contrary, the
Master Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an Administered REO Property is involved) pay directly
out of the Pool Custodial Account, the 000 Xxxxx Xxxxxx Custodial Account, the
Somerset Collection Custodial Account, the Xxxxxxxx Place Custodial Account or
the Cumberland Place Custodial Account, as applicable, in accordance with
Sections 3.05(a), 3.05A, 3.05B, 3.05C or 3.05D any servicing expense that, if
advanced by the Master Servicer or the Special Servicer, would constitute a
Nonrecoverable Servicing Advance; provided that the Master Servicer (or the
Special Servicer, if a Specially Serviced Mortgage Loan or an Administered REO
Property is involved) has determined in accordance with the Servicing Standard
that making such payment, in the case of withdrawals from a Loan Combination
Custodial Account, is in the best interests of the Certificateholders and the
related Serviced Non-Trust Mortgage Loan Noteholder(s) (as a collective whole),
or, in the case of withdrawals from the Pool Custodial Account, is in the best
interests of the Certificateholders (as a collective whole), as evidenced in
each case by an Officer's Certificate delivered promptly to the Trustee, the
Depositor, the Controlling Class Representative and any affected Serviced
Non-Trust Mortgage Loan Noteholder(s), setting forth the basis for such
determination and accompanied by any information that such Person may have
obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying information) of the Master Servicer shall also be
promptly delivered to the Special Servicer, and a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the Master Servicer. The Master Servicer may conclusively
rely on any information in this regard provided by the Special Servicer (if
other than the Master Servicer or an Affiliate thereof).
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SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property (other than the GIC Office Mortgaged
Properties) as soon as practicable after the related Serviced Mortgage Loan
becomes a Specially Serviced Mortgage Loan and annually thereafter for so long
as the related Serviced Mortgage Loan remains a Specially Serviced Mortgage
Loan, the cost of which shall be paid by the Master Servicer, at the direction
of the Special Servicer, and shall be reimbursable as a Servicing Advance. In
addition, the Special Servicer shall perform or cause to be performed a physical
inspection of each of the Administered REO Properties at least once per calendar
year, the cost of which shall be paid by the Master Servicer, at the direction
of the Special Servicer, and shall be reimbursable as a Servicing Advance.
Beginning in 2004, the Master Servicer shall at its expense perform or cause to
be performed a physical inspection of each Mortgaged Property securing a
Performing Serviced Mortgage Loan: (i) at least once every two calendar years in
the case of Mortgaged Properties securing Performing Serviced Mortgage Loans
that have outstanding principal balances of (or Mortgaged Properties having
allocated loan amounts of) $2,000,000 or less; and (ii) at least once every
calendar year in the case of all other such Mortgaged Properties; provided, that
the Master Servicer will not be required to perform or cause to be performed an
inspection on a Mortgaged Property if such Mortgaged Property has been inspected
by the Master Servicer or the Special Servicer in the preceding six months. The
Master Servicer and the Special Servicer shall each promptly prepare or cause to
be prepared and deliver to the Trustee, the related Serviced Non-Trust Mortgage
Loan Noteholder(s) (if the subject Mortgaged Property secures a Serviced Loan
Combination) and each other a written report of each such inspection performed
by it that sets forth in detail the condition of the Mortgaged Property and that
specifies the existence of: (i) any sale, transfer or abandonment of the
Mortgaged Property of which the Master Servicer or the Special Servicer, as
applicable, is aware, (ii) any change in the condition or value of the Mortgaged
Property that the Master Servicer or the Special Servicer, as applicable, in its
reasonable, good faith judgment, considers material, or (iii) any waste
committed on the Mortgaged Property. The Master Servicer and Special Servicer
shall each forward copies of any such inspection reports prepared by it to the
Underwriters and the Controlling Class Representative upon request, subject to
payment of a reasonable fee.
The Special Servicer, in the case of each Specially Serviced Mortgage
Loan and each REO Mortgage Loan that relates to an Administered REO Property,
and the Master Servicer, in the case of each Performing Serviced Mortgage Loan,
shall each, consistent with the Servicing Standard, use reasonable efforts to
obtain quarterly, annual and other periodic operating statements and rent rolls
with respect to each of the related Mortgaged Properties and REO Properties. The
Special Servicer shall, promptly following receipt, deliver copies of the
operating statements and rent rolls received or obtained by it to the Master
Servicer, and the Master Servicer shall promptly deliver copies of the operating
statements and rent rolls received or obtained by it to the Trustee, the Special
Servicer, the related Serviced Non-Trust Mortgage Loan Noteholder(s) (if the
subject Mortgaged Property secures a Serviced Loan Combination) or any
Controlling Class Certificateholder, in each case upon request. The Special
Servicer shall, promptly following receipt, deliver copies of the materials
received or obtained by it pursuant to the foregoing sentence to the Master
Servicer, and the Master Servicer shall promptly deliver copies of all such
materials received or obtained by it pursuant to the foregoing sentence and this
sentence to the Trustee, the Special Servicer, any Controlling Class
Certificateholder and any Serviced Non-Trust Mortgage Loan Noteholder, in each
case upon request.
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Within 30 days after receipt by the Master Servicer of any annual
operating statements with respect to any Mortgaged Property (other than the GIC
Office Mortgaged Properties) or Administered REO Property, the Master Servicer
with respect to a Performing Serviced Mortgage Loan and the Special Servicer
with respect to a Specially Serviced Mortgage Loan or an REO Mortgage Loan that
relates to an Administered REO Property shall prepare or update and forward to
the Trustee a CMSA NOI Adjustment Worksheet for such Mortgaged Property or
Administered REO Property (with, upon request, the annual operating statements
attached thereto as an exhibit).
The Master Servicer with respect to a Performing Serviced Mortgage
Loan and the Special Servicer with respect to a Specially Serviced Mortgage Loan
or an REO Mortgage Loan that relates to an Administered REO Property shall
prepare and maintain one CMSA Operating Statement Analysis Report for each
Mortgaged Property (other than the GIC Office Mortgaged Properties) and
Administered REO Property. The CMSA Operating Statement Analysis Report for each
such Mortgaged Property and REO Property is to be updated by the Master Servicer
or Special Servicer, as applicable, within 30 days after its receipt of updated
operating statements for a Mortgaged Property or REO Property, as the case may
be. The Master Servicer or Special Servicer, as applicable, shall use the
"Normalized" column from the CMSA NOI Adjustment Worksheet for any Mortgaged
Property or REO Property, as the case may be, to update and normalize the
corresponding annual year-end information in the CMSA Operating Statement
Analysis Report and shall use any annual operating statements and related data
fields received with respect to any Mortgaged Property or REO Property, as the
case may be, to prepare the CMSA NOI Adjustment Worksheet for such property.
Copies of CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment
Worksheets are to be forwarded to the Trustee automatically (on a monthly basis)
during any period in respect of which Exchange Act Reports are being filed as to
the Trust with the Commission, and are otherwise to be made available by the
Master Servicer to the Trustee, the Special Servicer and any Controlling Class
Certificateholder, in each case upon request.
(b) Not later than 12:00 p.m. (New York City time) on the Business Day
after each Trust Determination Date, the Special Servicer shall deliver or cause
to be delivered to the Master Servicer the following reports with respect to the
Specially Serviced Trust Mortgage Loans and any Administered REO Properties,
providing the required information as of the related Determination Date: (i) a
CMSA Property File; and (ii) a CMSA Comparative Financial Status Report. Not
later than 2:00 p.m. (New York City time) on the third Business Day prior to
each Distribution Date, the Special Servicer shall deliver or cause to be
delivered to the Master Servicer the following reports with respect to the
Specially Serviced Trust Mortgage Loans and any Administered REO Properties and,
to the extent that the subject information relates to when they were Specially
Serviced Trust Mortgage Loans, any Corrected Trust Mortgage Loans: (i) a CMSA
Delinquent Loan Status Report; (ii) a Loan Payoff Notification Report; (iii) a
CMSA Historical Liquidation Report; (iv) a CMSA Historical Loan Modification and
Corrected Mortgage Loan Report; and (v) a CMSA REO Status Report.
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day prior to each Distribution Date, the Master Servicer shall deliver
or cause to be delivered to the Trustee, the Rating Agencies, the Special
Servicer and, upon request, any Controlling Class Certificateholder: (i) the
most recent CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, CMSA Historical Liquidation Report and CMSA REO Status Report received
from the Special Servicer pursuant to Section 3.12(b); (ii) the most recent CMSA
Property File, CMSA Financial File, CMSA Loan Setup File (if modified), CMSA
Loan Level Reserve/LOC Report, CMSA Delinquent Loan Status
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Report, CMSA Comparative Financial Status Report and Loan Payoff Notification
Report (in each case combining the reports prepared by the Special Servicer and
the Master Servicer); and (iii) a CMSA Servicer Watch List with information that
is current as of the related Determination Date with respect to each subject
Trust Mortgage Loan. The Master Servicer shall incorporate in the foregoing
reports any information and reports received (by the date in the month of such
Distribution Date that such information and reports are scheduled to be received
in accordance with the GIC Office Servicing Agreement) from the applicable GIC
Office Servicer with respect to the GIC Office Trust Mortgage Loan or any GIC
Office REO Trust Mortgage Loan. The Master Servicer shall include on one of such
reports updated information as of the applicable Determination Date regarding
the amount of accrued and unpaid interest on Advances in accordance with Section
3.11(g) and/or 4.03(d), such information to be presented on a loan-by-loan
basis.
If the Master Servicer determines, in its reasonable judgment, that
information regarding the Trust Mortgage Loans and REO Properties (in addition
to the information otherwise required to be contained in the CMSA Investor
Reporting Package) should be disclosed to Certificateholders and Certificate
Owners, then it shall forward such information in the form of a Supplemental
Report to the Trustee in accordance with Section 4.02(a).
(d) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer, and the Master
Servicer shall deliver to the Trustee, the Special Servicer and, upon request,
any Controlling Class Certificateholder the reports set forth in Section 3.12(c)
in an electronic format reasonably acceptable to the Master Servicer and the
Trustee. The Master Servicer may, absent manifest error, conclusively rely on
the reports to be provided by the Special Servicer pursuant to Section 3.12(b)
and, with respect to the GIC Office Trust Mortgage Loan, by a GIC Office
Servicer pursuant to the GIC Office Servicing Agreement.. The Trustee may,
absent manifest error, conclusively rely on the reports to be provided by the
Master Servicer pursuant to Section 3.12(c) to the extent that the underlying
information is solely within the control of the Master Servicer or the Special
Servicer. In the case of information or reports to be furnished by the Master
Servicer to the Trustee pursuant to Section 3.12(c), to the extent that such
information is based on reports to be provided by the Special Servicer pursuant
to Section 3.12(b) or by a GIC Office Servicer pursuant to the GIC Office
Servicing Agreement and/or that such reports are to be prepared and delivered by
the Special Servicer pursuant to Section 3.12(b), so long as the Master Servicer
and the party required to provide the subject reports are not the same Person or
Affiliates, the Master Servicer shall have no obligation to provide such
information or reports to the Trustee until it has received such information or
reports from the Special Servicer or the relevant GIC Office Servicer, as
applicable, and the Master Servicer shall not be in default hereunder due to a
delay in providing the reports required by Section 3.12(c) caused by the Special
Servicer's failure to timely provide any report required under Section 3.12(b)
of this Agreement or a GIC Office Servicer's failure to provide any report
required to be provided to the holder of the GIC Office Trust Mortgage Loan
pursuant to the GIC Office Servicing Agreement, as applicable.
(e) The preparation and maintenance by the Master Servicer and the
Special Servicer of all the reports specified in this Section 3.12, including
the calculations made therein, shall be done in accordance with CMSA standards
to the extent applicable thereto.
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SECTION 3.12A. Delivery of Certain Reports to the Serviced Non-Trust
Mortgage Loan Noteholders.
(a) The Master Servicer shall promptly deliver to each Serviced
Non-Trust Mortgage Loan Noteholder: (i) copies of operating statements and rent
rolls; (ii) upon request, annual CMSA NOI Adjustment Worksheets (with annual
operating statements as exhibits); and (iii) annual CMSA Operating Statement
Analysis Reports, in each case prepared, received or obtained by it pursuant to
Section 3.12 with respect to the Mortgaged Property securing the related
Serviced Loan Combination.
(b) If the Mortgage Loans forming a Serviced Loan Combination
constitute Specially Serviced Mortgage Loans, or if a Mortgaged Property
securing a Serviced Loan Combination has become an REO Property, then each
calendar month, not later than 12:00 p.m. (New York City time) on the Business
Day after each applicable Determination Date, the Special Servicer shall deliver
or cause to be delivered to the Master Servicer the following reports with
respect to such Serviced Loan Combination and/or the related Mortgaged Property,
providing the required information as of the related Determination Date: (i) a
CMSA Property File (or similar report satisfactory to the Master Servicer); and
(ii) a CMSA Comparative Financial Status Report (or similar report satisfactory
to the Master Servicer). If the Mortgage Loans forming a Serviced Loan
Combination constitute Specially Serviced Mortgage Loans, or if a Mortgaged
Property securing a Serviced Loan Combination has become an REO Property, then
each calendar month, not later than 10:00 a.m. (New York City time) on the
second Business Day prior to the applicable Master Servicer Remittance Date in
such month, the Special Servicer shall deliver or cause to be delivered to the
Master Servicer such of the following reports as may be relevant with respect to
such Serviced Loan Combination and/or the related Mortgaged Property: (i) a CMSA
Delinquent Loan Status Report; (ii) a Loan Payoff Notification Report, (iii) a
CMSA Historical Liquidation Report; (iv) a CMSA Historical Loan Modification and
Corrected Mortgage Loan Report; and (v) a CMSA REO Status Report.
(c) Prior to 12:00 noon (New York City time) on each applicable Master
Servicer Remittance Date, the Master Servicer shall, with respect to each
Serviced Loan Combination, prepare all Loan Combination Servicing Reports as may
be relevant and that are not otherwise required to be prepared by the Special
Servicer pursuant to Section 3.12A(b). The Master Servicer shall also include on
one of such reports updated information as of the applicable Determination Date
regarding the amount of accrued and unpaid interest on Advances in accordance
with Section 3.11(g) and/or 4.03(d), such information to be presented on a
loan-by-loan basis.
(d) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12A(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer. The Master Servicer
may, absent manifest error, conclusively rely on the reports to be provided by
the Special Servicer pursuant to Section 3.12A(b). In the case of information or
reports to be furnished by the Master Servicer to a Serviced Non-Trust Mortgage
Loan Noteholder pursuant to Section 3.12B(a), to the extent that such
information is based on reports to be provided by the Special Servicer pursuant
to Section 3.12A(b) and/or that such reports are to be prepared and delivered by
the Special Servicer pursuant to Section 3.12A(b), so long as the Master
Servicer and the Special Servicer are not the same Person or Affiliates, the
Master Servicer shall have no obligation to provide such information or reports
until it has received such information or reports from the Special Servicer, and
the Master Servicer shall not be in default hereunder due to a delay in
providing the reports required by
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Section 3.12B(a) caused by the Special Servicer's failure to timely provide any
report required under Section 3.12A(b) of this Agreement.
(e) The preparation and maintenance by the Master Servicer and the
Special Servicer of all the reports specified in this Section 3.12A, including
the calculations made therein, shall be done in accordance with CMSA standards,
to the extent applicable thereto.
SECTION 3.12B. Statements to the Serviced Non-Trust Mortgage Loan
Noteholders.
(a) Not later than 12:00 noon (New York City time) on the Business Day
prior to each applicable Determination Date, the Master Servicer shall forward
the related Somerset Collection Preliminary Master Servicer Remittance Report
with respect to Somerset Collection Non-Trust Mortgage Loans to the respective
Somerset Collection Non-Trust Mortgage Loan Noteholder. Not later than 12:00
noon (New York City time) on each related Master Servicer Remittance Date, the
Master Servicer shall forward to the related Non-Trust Mortgage Loan
Noteholder(s) all related Loan Combination Servicing Reports prepared with
respect to each Serviced Loan Combination, pursuant to Section 3.12A, during the
calendar month in which such Master Servicer Remittance Date occurs.
(b) The Master Servicer shall only be obligated to deliver the
statements, reports and information contemplated by Section 3.12B(a) to the
extent it receives the necessary underlying information from the Special
Servicer and shall not be liable for its failure to deliver such statements,
reports and information on the prescribed due dates, to the extent caused by the
failure of the Special Servicer to deliver timely such underlying information.
Nothing herein shall obligate the Master Servicer or the Special Servicer to
violate any applicable law prohibiting disclosure of information with respect to
the related Mortgagor, and the failure of the Master Servicer or the Special
Servicer to disseminate information for such reason shall not be a breach
hereunder.
Absent manifest error of which it has actual knowledge, neither the
Master Servicer nor the Special Servicer shall be responsible for the accuracy
or completeness of any information supplied to it by a Mortgagor, a Mortgage
Loan Seller or third party that is included in any reports, statements,
materials or information prepared or provided by the Master Servicer or the
Special Servicer, as applicable, pursuant to this Agreement. Neither the Master
Servicer nor the Special Servicer shall have any obligation to verify the
accuracy or completeness of any information provided by a Mortgagor, a Mortgage
Loan Seller, a third party or each other.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver to
the Trustee, the Rating Agencies, the Depositor, the Underwriters, each Serviced
Non-Trust Mortgage Loan Noteholder and each other, on or before April 30 of each
year, beginning in 2005 (or, as to any such year, such earlier date as is
contemplated by the last sentence of this Section 3.13), an Officer's
Certificate (the "Annual Performance Certification") stating, as to the signer
thereof, that (i) a review of the activities of the Master Servicer or the
Special Servicer, as the case may be, during the preceding calendar year (or, in
the case of the first such certification, during the period from the Closing
Date to December 31, 2004, inclusive) and, in particular, of its performance
under this Agreement, has been made under such officer's supervision, (ii) to
the best of such officer's knowledge, based on such review, the Master Servicer
or the Special Servicer, as the case may be, has fulfilled all of its material
obligations under this Agreement in all material respects throughout such
preceding calendar year or portion thereof (or, if
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there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof), and
(iii) the Master Servicer or the Special Servicer, as- the case may be, has
received no notice regarding the qualification, or challenging the status, of
any REMIC Pool as a REMIC or Grantor Trust V as a Grantor Trust, from the IRS or
any other governmental agency or body (or, if it has received any such notice,
specifying the details thereof). Notwithstanding the timing provided for in the
first sentence of this paragraph, if (as confirmed in writing by the Depositor)
the Depositor is required to file a Form 10-K with the Commission in respect of
the Trust covering any particular calendar year, then the Annual Performance
Certification to be delivered by each of the Master Servicer and the Special
Servicer during the following year, shall be delivered on or before March 15 of
such following year; and the Master Servicer and the Special Servicer are hereby
notified that the Depositor is required to file a Form 10-K with the Commission
in respect of the Trust covering calendar year 2004.
SECTION 3.14. Reports by Independent Public Accountants.
On or before April 30 of each year, beginning in 2005 (or, as to any
such year, such earlier date as is contemplated by the last sentence of this
paragraph), each of the Master Servicer and the Special Servicer at its expense
shall cause a firm of independent public accountants (which may also render
other services to the Master Servicer or the Special Servicer) that is a member
of the American Institute of Certified Public Accountants to furnish a statement
(the "Annual Accountants' Report") to the Trustee, the Rating Agencies, the
Depositor, the Underwriters, each Serviced Non-Trust Mortgage Loan Noteholder
and each other, to the effect that (i) such firm has obtained a letter of
representation regarding certain matters from the management of the Master
Servicer or the Special Servicer, as applicable, which includes an assertion
that the Master Servicer or the Special Servicer, as applicable, has complied
with certain minimum mortgage loan servicing standards (to the extent applicable
to commercial and multifamily mortgage loans), identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the servicing of commercial and
multifamily mortgage loans during the most recently completed calendar year and
(ii) on the basis of an examination conducted by such firm in accordance with
standards established by the American Institute of Certified Public Accountants,
such representation is fairly stated in all material respects, subject to such
exceptions and other qualifications that may be appropriate. In rendering its
report such firm may rely, as to matters relating to the direct servicing of
commercial and multifamily mortgage loans by sub-servicers, upon comparable
reports of firms of independent certified public accountants rendered (within
one year of such report) on the basis of examinations conducted in accordance
with the same standards with respect to those sub-servicers. Notwithstanding the
timing provided for in the first sentence of this paragraph, if (as confirmed in
writing by the Depositor) the Depositor is required to file a Form 10-K with the
Commission in respect of the Trust covering any particular calendar year, then
the Annual Accountants' Report to be delivered on behalf of each of the Master
Servicer and the Special Servicer during the following year shall be delivered
on or before March 15 of such following year and shall not contain any
restrictions on the filing thereof with the Commission with respect to calendar
year 2004; and the Master Servicer and the Special Servicer are hereby notified
that the Depositor is required to file a Form 10-K (including the foregoing
Annual Accountants' Report) with the Commission in respect of the Trust covering
calendar year 2004.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
reports delivered pursuant to this Section 3.14 to requirements imposed by the
Commission on the Depositor in connection with the Depositor's reporting
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requirements in respect of the Trust Fund pursuant to the Exchange Act, provided
that the Master Servicer and Special Servicer shall each be entitled to charge
the Depositor for any reasonable additional costs and expenses incurred in
affording the Depositor such cooperation.
SECTION 3.15. Access to Certain Information.
(a) Each of the Master Servicer and the Special Servicer shall afford
to the Trustee, the Underwriters, the Rating Agencies, the Depositor, any
Certificateholder, any Serviced Non-Trust Mortgage Loan Noteholder and any
Certificate Owner (identified as such to the reasonable satisfaction of the
Master Servicer or the Special Servicer, as the case may be), and to the OTS,
the FDIC and any other banking or insurance regulatory authority that may
exercise authority over any Certificateholder, any Certificate Owner (identified
as such to the reasonable satisfaction of the Master Servicer or the Special
Servicer, as the case may be) or any Serviced Non-Trust Mortgage Loan
Noteholder, access to any records regarding the Serviced Mortgage Loans and the
servicing thereof within its control (which access shall be limited, in the case
of any Serviced Non-Trust Mortgage Loan Noteholder or any regulatory authority
seeking such access in respect of a Serviced Non-Trust Mortgage Loan Noteholder,
to records relating to the related Serviced Non-Trust Mortgage Loan), except to
the extent it is prohibited from doing so by applicable law or contract or to
the extent such information is subject to a privilege under applicable law to be
asserted on behalf of the Certificateholders or the Serviced Non-Trust Mortgage
Loan Noteholders. Such access shall be afforded only upon reasonable prior
written request and during normal business hours at the offices of the Master
Servicer or the Special Servicer, as the case may be, designated by it.
In connection with providing or granting any information or access
pursuant to the prior paragraph to a Certificateholder, a Certificate Owner, a
Serviced Non-Trust Mortgage Loan Noteholder or any regulatory authority that may
exercise authority over a Certificateholder, a Certificate Owner or a Serviced
Non-Trust Mortgage Loan Noteholder, the Master Servicer and the Special Servicer
each may require payment from such Certificateholder, a Certificate Owner or a
Serviced Non-Trust Mortgage Loan Noteholder of a sum sufficient to cover the
reasonable costs and expenses of providing such information or access, including
copy charges and reasonable fees for employee time and for space; provided that
no charge may be made if such information or access was required to be given or
made available under applicable law. In connection with providing
Certificateholders and Certificate Owners access to the information described in
the preceding paragraph, the Master Servicer and the Special Servicer shall
require (prior to affording such access) a written confirmation executed by the
requesting Person substantially in such form as may be reasonably acceptable to
the Master Servicer or the Special Servicer, as the case may be, generally to
the effect that such Person is a Holder of Certificates or a beneficial holder
of Book-Entry Certificates and will keep such information confidential.
Upon the reasonable request of any Certificateholder, or any
Certificate Owner identified to the Master Servicer to the Master Servicer's
reasonable satisfaction, the Master Servicer may provide (or forward
electronically) (at the expense of such Certificateholder or Certificate Owner)
copies of any operating statements, rent rolls and financial statements obtained
by the Master Servicer or the Special Servicer; provided that, in connection
therewith, the Master Servicer shall require a written confirmation executed by
the requesting Person substantially in such form as may be reasonably acceptable
to the Master Servicer, generally to the effect that such Person is a Holder of
Certificates or a beneficial holder of Book-Entry Certificates and will keep
such information confidential.
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(b) No less often than on a monthly basis, upon reasonable prior
notice and during normal business hours, each of the Master Servicer and the
Special Servicer shall, without charge, make a knowledgeable Servicing Officer
available to answer questions (if and to the extent the Master Servicer or the
Special Servicer, as the case may be, is responsible (or, in the case of the
Special Servicer, would be responsible upon the occurrence of a Servicing
Transfer Event) for the servicing thereof) from the following parties: (i) the
Controlling Class Representative regarding the performance and servicing of the
Mortgage Loans and/or the REO Properties, (ii) the Somerset Collection
Subordinate Non-Trust Mortgage Loan Noteholder, if and for so long as it
constitutes the Somerset Collection Directing Lender, regarding the performance
and servicing of the Somerset Collection Loan Group and/or the Somerset
Collection REO Property, (iii) from the Xxxxxxxx Place Non-Trust Mortgage Loan
Noteholder, unless and until a Xxxxxxxx Place Threshold Event has occurred,
regarding the performance and servicing of the Xxxxxxxx Place Loan Pair and/or
the Xxxxxxxx Place REO Property and (iv) from the Cumberland Place Non-Trust
Mortgage Loan Noteholder, if and for so long as it constitutes the Cumberland
Place Directing Lender, regarding the performance and servicing of the
Cumberland Place Loan Pair and/or the Cumberland Place REO Property. Except as
provided in the following sentence, in connection with providing the Controlling
Class Representative with the information described in the preceding sentence,
the Master Servicer and the Special Servicer shall require (prior to providing
such information for the first time to such Controlling Class Representative) a
written confirmation executed by the Controlling Class Representative, in the
form of Exhibit O attached hereto, generally to the effect that such Person will
keep any information received by it from time to time pursuant to this Agreement
confidential (other than with respect to communications with the Controlling
Class). In the case of the initial Controlling Class Representative, upon its or
an Affiliate's acquisition of the Class T Certificates, such entity shall be
deemed to have agreed to keep all non-public information received by it in such
capacity from time to time pursuant to this Agreement confidential, subject to
applicable law.
SECTION 3.16. Title to REO Property; REO Accounts.
(a) If title to any Mortgaged Property (other than the GIC Office
Mortgaged Properties) is acquired, the deed or certificate of sale shall be
issued to the Trustee or its nominee on behalf of the Certificateholders and, in
the case of a Mortgaged Property that secures a Serviced Loan Combination, on
behalf of the related Serviced Non-Trust Mortgage Loan Noteholder(s). If,
pursuant to Section 3.09(b), the Special Servicer formed or caused to be formed,
at the expense of the Trust, a single member limited liability company (of which
the Trust is the sole member) for the purpose of taking title to one or more
Administered REO Properties pursuant to this Agreement, then (subject to the
interests of any affected Serviced Non-Trust Mortgage Loan Noteholder), the deed
or certificate of sale with respect to any such Administered REO Property shall
be issued to such single member limited liability company. The limited liability
company shall be a manager-managed limited liability company, with the Special
Servicer to serve as the initial manager to manage the property of the limited
liability company, including any applicable Administered REO Property, in
accordance with the terms of this Agreement as if such property was held
directly in the name of the Trust or Trustee under this Agreement.
The Special Servicer, on behalf of the Trust Fund and, in the case of
any Administered REO Property that relates to a Serviced Loan Combination, the
related Serviced Non-Trust Mortgage Loan Noteholder(s), shall sell any
Administered REO Property by the end of the third calendar year following the
calendar year in which REMIC I acquires ownership of such REO Property for
purposes
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of Section 860G(a)(8) of the Code, unless the Special Servicer either (i)
applies, more than 60 days prior to the end of such third succeeding year, for
and is granted an extension of time (an "REO Extension") by the IRS to sell such
REO Property or (ii) obtains for the Trustee an Opinion of Counsel, addressed to
the Trustee, the Special Servicer and the Master Servicer, to the effect that
the holding by REMIC I of such Administered REO Property subsequent to the end
of such third succeeding year will not result in the imposition of taxes on
"prohibited transactions" (as defined in Section 860F of the Code) of any REMIC
Pool or cause any REMIC Pool to fail to qualify as a REMIC at any time that any
Certificates are outstanding. If the Special Servicer is granted the REO
Extension contemplated by clause (i) of the immediately preceding sentence or
obtains the Opinion of Counsel contemplated by clause (ii) of the immediately
preceding sentence, the Special Servicer shall sell the subject Administered REO
Property within such extended period as is permitted by such REO Extension or
such Opinion of Counsel, as the case may be. Any expense incurred by the Special
Servicer in connection with its obtaining the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, or for the
creation of and the operating of a single member limited liability company,
shall be covered by, and reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds collected
and received in connection with any Administered REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur in
respect of any Mortgaged Property (other than a Mortgaged Property that secures
a Loan Combination), the Special Servicer shall establish and maintain one or
more accounts (collectively, the "Pool REO Account"), to be held on behalf of
the Trustee in trust for the benefit of the Certificateholders, for the
retention of revenues and other proceeds derived from each REO Property (other
than any REO Property that relates to a Loan Combination). If such REO
Acquisition occurs with respect to the 000 Xxxxx Xxxxxx Mortgaged Property, the
Somerset Collection Mortgaged Property, the Xxxxxxxx Place Mortgaged Property or
the Cumberland Place Mortgaged Property, then the Special Servicer shall
establish an REO Account solely with respect to such property (the "666 Fifth
Avenue REO Account", in the case of the 000 Xxxxx Xxxxxx Mortgaged Property, the
"Somerset Collection REO Account", in the case of the Somerset Collection
Mortgaged Property, the "Xxxxxxxx Place REO Account", in the case of the
Xxxxxxxx Place Mortgaged Property and the "Cumberland Place REO Account," in the
case of the Cumberland Place Mortgaged Property), to be held for the benefit of
the Certificateholders and the related Non-Trust Mortgage Loan Noteholder(s).
The Pool REO Account and each Loan Combination REO Account shall each be an
Eligible Account. The Special Servicer shall deposit, or cause to be deposited,
in the applicable REO Account, upon receipt, all REO Revenues, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds received in respect of
any Administered REO Property. Funds in an REO Account (other than any such
funds representing Additional Interest) may be invested in Permitted Investments
in accordance with Section 3.06. The Special Servicer shall be entitled to make
withdrawals from an REO Account to pay itself, as additional special servicing
compensation in accordance with Section 3.11(d), interest and investment income
earned in respect of amounts held in such REO Account as provided in Section
3.06(b) (but only to the extent of the Net Investment Earnings with respect to
such REO Account for any related Investment Period). The Special Servicer shall
give notice to the Trustee and the Master Servicer of the location of each REO
Account, and shall give notice to the related Serviced Non-Trust Mortgage Loan
Noteholder(s) of the location of any Loan Combination REO Account, in each case
when first established and of the new location of any such REO Account prior to
any change thereof.
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(c) The Special Servicer shall withdraw from the related REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any Administered REO Property, but only to the extent of amounts
on deposit in such REO Account relating to such REO Property. On the Business
Day following each Trust Determination Date, the Special Servicer shall withdraw
from any Pool REO Account and deposit into the Pool Custodial Account (or
deliver to the Master Servicer or such other Person as may be designated by the
Master Servicer for deposit into the Pool Custodial Account) the aggregate of
all amounts received in respect of each Administered REO Property (other than
any Administered REO Property relating to a Serviced Loan Combination) during
the Trust Collection Period ending on such Trust Determination Date, net of any
withdrawals made out of such amounts pursuant to the preceding sentence and,
further, net of any reserves to be maintained in the Pool REO Account in
accordance with the last sentence of this Section 3.16(c). On the Business Day
following each Trust Determination Date, the Special Servicer shall withdraw
from the related Loan Combination REO Account and deposit into the related Loan
Combination Custodial Account (or deliver to the Master Servicer or such other
Person as may be designated by the Master Servicer for deposit into the related
Loan Combination Custodial Account) the aggregate of all amounts received in
respect of any Administered REO Property (exclusive of the Somerset Collection
Loan Group) during the Trust Collection Period ending on such Trust
Determination Date, net of any withdrawals made out of such amounts pursuant to
the second preceding sentence and, further, net of any reserves to be maintained
in the related Loan Combination REO Account in accordance with the last sentence
of this Section 3.16(c). On the Business Day following each Somerset Collection
Determination Date, the Special Servicer shall withdraw from any Somerset
Collection REO Account and deposit into the Somerset Collection Custodial
Account (or deliver to the Master Servicer or such other Person as may be
designated by the Master Servicer for deposit into the Somerset Collection
Custodial Account) the aggregate of all amounts received in respect of any
Somerset Collection REO Property during the Somerset Collection Collection
Period ending on such Somerset Collection Determination Date, net of any
withdrawals made out of such amounts pursuant to the third preceding sentence
and, further, net of any reserves to be maintained in the Somerset Collection
REO Account in accordance with the last sentence of this Section 3.16(c).
Notwithstanding the foregoing, the Special Servicer may retain in the
related REO Account such portion of proceeds and collections in respect of any
Administered REO Property as may be necessary to maintain a reserve of
sufficient funds for the proper operation, management, leasing, maintenance and
disposition of such REO Property (including the creation of a reasonable reserve
for repairs, replacements, necessary capital replacements and other related
expenses), such reserve not to exceed an amount sufficient to cover such items
to be incurred during the following twelve-month period.
(d) The Special Servicer shall keep and maintain separate records, on
a property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, each REO Account pursuant to Section 3.16(b) or (c). The
Special Servicer shall provide the Master Servicer any information with respect
to each REO Account as is reasonably requested by the Master Servicer.
(e) Notwithstanding anything to the contrary, this Section 3.16 shall
not apply to any GIC Office REO Property.
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SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition by it of title to a Mortgaged Property
(other than the GIC Office Mortgaged Properties), the Special Servicer shall
review the operation of such Mortgaged Property and determine the nature of the
income that would be derived from such property if it were acquired by the Trust
Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions or would be subject to the tax
imposed on "prohibited transactions" under Section 860F of the Code (either
such tax referred to herein as an "REO Tax"), then such Mortgaged Property
may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such property
would not result in income subject to an REO Tax, then the Special Servicer
may (provided that in the good faith and reasonable judgment of the Special
Servicer, it is commercially reasonable) acquire such Mortgaged Property as
REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that no commercially reasonable means exists to operate such property as
REO Property without the Trust Fund incurring or possibly incurring an REO
Tax on income from such property, the Special Servicer shall deliver to the
Tax Administrator, in writing, a proposed plan (the "Proposed Plan") to
manage such property as REO Property. Such plan shall include potential
sources of income, and, to the extent reasonably possible, estimates of the
amount of income from each such source. Upon request of the Special
Servicer, the Tax Administrator shall advise the Special Servicer of the
Tax Administrator's federal income tax reporting position with respect to
the various sources of income that the Trust Fund would derive under the
Proposed Plan. After receiving the information described in the preceding
sentence from the Tax Administrator, the Special Servicer shall implement
the Proposed Plan (after acquiring the respective Mortgaged Property as REO
Property), with any amendments required to be made thereto as a result of
the Tax Administrator's tax reporting position.
The Special Servicer's decision as to how each Administered REO
Property shall be managed and operated shall be based on the Servicing Standard
and, further, based on the good faith and reasonable judgment of the Special
Servicer as to which means would be in the best interest of the
Certificateholders (and, in the case of any 000 Xxxxx Xxxxxx REO Property,
Somerset Collection REO Property, Xxxxxxxx Place REO Property or Cumberland
Place REO Property, the related Serviced Non-Trust Mortgage Loan Noteholder(s)),
as a collective whole, by maximizing (to the extent commercially reasonable and
consistent with Section 3.17(b)) the net after-tax REO Revenues received with
respect to such property without materially impairing the Special Servicer's
ability to promptly sell such property for a fair price. In connection with
performing their respective duties under this Section 3.17(a), both the Special
Servicer and the Tax Administrator may consult with counsel and tax accountants,
the
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reasonable cost of which consultation shall be covered by, and be reimbursable
as, a Servicing Advance to be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special
Servicer shall manage, conserve, protect and operate such REO Property for the
benefit of the Certificateholders (and, in the case of any 000 Xxxxx Xxxxxx REO
Property, Somerset Collection REO Property, Xxxxxxxx Place REO Property or
Cumberland Place REO Property, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) solely for the purpose of its prompt disposition and sale in a
manner that does not and will not: (i) cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code for purposes of Section 860D(a) of the Code; or (ii) except as
contemplated by Section 3.17(a), either result in the receipt by any REMIC Pool
of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or result in an Adverse REMIC Event or an Adverse
Grantor Trust Event. Subject to the foregoing, however, the Special Servicer
shall have full power and authority to do any and all things in connection
therewith as are consistent with the Servicing Standard and, consistent
therewith, shall withdraw from the related REO Account, to the extent of amounts
on deposit therein with respect to any Administered REO Property, funds
necessary for the proper operation, management, maintenance and disposition of
such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the related REO Account in
respect of any Administered REO Property are insufficient for the purposes set
forth in the preceding sentence with respect to such REO Property, the Master
Servicer shall, at the direction of the Special Servicer, make Servicing
Advances in such amounts as are necessary for such purposes unless the Master
Servicer determines, in accordance with the Servicing Standard, that such
payment would be a Nonrecoverable Advance; provided, however, that the Master
Servicer may make any such Servicing Advance without regard to recoverability if
it is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special
Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to
such Administered REO Property, if the New Lease, by its terms would give
rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
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(iii) authorize or permit any construction on such Administered
REO Property, other than the completion of a building or other improvement
thereon, and then only if more than 10% of the construction of such
building or other improvement was completed before default on the related
Serviced Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate such Administered REO Property
on any date more than 90 days after the related REO Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer, at the
direction of the Special Servicer, and shall be reimbursable as a Servicing
Advance) to the effect that such action would not cause such Administered REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code at
any time that it is held by REMIC I, in which case the Special Servicer may take
such actions as are specified in such Opinion of Counsel.
(d) The Special Servicer may contract with any Independent Contractor
for the operation and management of any Administered REO Property; provided
that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust Fund and, in the case of any 000 Xxxxx Xxxxxx REO
Property, Somerset Collection REO Property, Xxxxxxxx Place REO Property or
Cumberland Place REO Property, the related Serviced Non-Trust Mortgage Loan
Noteholder(s)) shall be reasonable and customary in consideration of the
nature and locality of such Administered REO Property;
(iii) except as permitted under Section 3.17(a), any such
contract shall require, or shall be administered to require, that the
Independent Contractor, in a timely manner, (A) pay out of related REO
Revenues all costs and expenses incurred in connection with the operation
and management of such Administered REO Property, including those listed in
Section 3.17(b) above, and (B) except to the extent that such revenues are
derived from any services rendered by the Independent Contractor to tenants
of such Administered REO Property that are not customarily furnished or
rendered in connection with the rental of real property (within the meaning
of Section 1.856-4(b)(5) of the Treasury regulations or any successor
provision), remit all related revenues collected (net of its fees and such
costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to
any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of its
duties and obligations hereunder with respect to the operation and
management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such
Administered REO Property.
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The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations under Section 3.16 and this Section 3.17 for indemnification of
the Special Servicer by any such Independent Contractor, and nothing in this
Agreement shall be deemed to limit or modify such indemnification. No agreement
entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing
Agreement for purposes of Section 3.22.
(e) Notwithstanding anything to the contrary, this Section 3.17 shall
not apply to any GIC Office REO Property.
SECTION 3.18. Sale of Trust Mortgage Loans and Administered REO
Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may sell
or purchase, or permit the sale or purchase of, a Trust Mortgage Loan or
Administered REO Property only (i) on the terms and subject to the conditions
set forth in this Section 3.18, (ii) as otherwise expressly provided in or
contemplated by Sections 2.03 and 9.01 of this Agreement and/or the
UBS/Depositor Mortgage Loan Purchase Agreement, (iii) in the case of a Trust
Mortgage Loan that is part of a Loan Combination, as set forth in the related
Co-Lender Agreement, and (iv) in the case of a Trust Mortgage Loan with a
related mezzanine loan, in connection with a Mortgage Loan event of default as
set forth in the related mezzanine intercreditor agreement.
(b) If the Special Servicer has determined in good faith that any
Defaulted Trust Mortgage Loan will become subject to foreclosure or similar
proceedings, the Special Servicer shall promptly so notify in writing the
Trustee, the Master Servicer and, if the subject Defaulted Trust Mortgage Loan
is a Serviced Combination Trust Mortgage Loan, the related Serviced Non-Trust
Mortgage Loan Noteholder(s), whereupon the Trustee shall, within 10 days after
receipt of such notice, notify each Controlling Class Certificateholder. In
connection therewith:
(i) the Majority Controlling Class Certificateholder(s) or any
assignees of the Majority Controlling Class Certificateholder(s) may, at
its or their option, during the 30-Business Day period following receipt of
such notice by such Certificateholder(s), purchase any such Defaulted Trust
Mortgage Loan from the Trust Fund, at a cash price at least equal to the
Purchase Price;
(ii) if no Majority Controlling Class Certificateholder(s) and no
assignee thereof has purchased any Defaulted Trust Mortgage Loan within 30
Business Days of the Majority Controlling Class Certificateholder(s) having
received notice in respect thereof pursuant to clause (i) above, then the
Special Servicer may, at its option, during the immediately following
15-Business Day period, purchase such Defaulted Trust Mortgage Loan from
the Trust Fund, at a cash price at least equal to the Purchase Price; and
(iii) if the Special Servicer has not purchased any Defaulted
Trust Mortgage Loan within the 15-Business Day period referred to in clause
(ii) above, then the Majority Controlling Class Certificateholder(s) and
any assignees of the Majority Controlling Class Certificateholder(s) may,
at its or their option, during the 30-Business Day period following the
expiration of such 15-Business Day period, purchase any such Defaulted
Trust Mortgage Loan from the Trust Fund, at a cash price at least equal to
the Purchase Price.
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The Purchase Price for any Defaulted Trust Mortgage Loan purchased
under this subsection (b) shall be deposited into the Pool Custodial Account;
and the Trustee, upon receipt of an Officer's Certificate from the Master
Servicer to the effect that such deposit has been made, shall release or cause
to be released to the purchasing Majority Controlling Class Certificateholder(s)
(or any purchasing assignee of the Majority Controlling Class
Certificateholder(s), if applicable) or the purchasing Special Servicer, as the
case may be, 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 and are reasonably necessary to vest in such Majority
Controlling Class Certificateholder(s) (or any assignee of the Majority
Controlling Class Certificateholder(s)) (if it is the purchasing party) or the
Special Servicer (if it is the purchasing party), ownership of such Trust
Mortgage Loan. In connection with any such purchase, if the Majority Controlling
Class Certificateholder(s) (or any assignee of the Majority Controlling Class
Certificateholder(s), if applicable) is the purchasing party, the Special
Servicer shall deliver the related Servicing File to such Certificateholder(s)
(or such assignee). Notwithstanding the foregoing, if a Defaulted Trust Mortgage
Loan purchased pursuant to this Section 3.18(b) is a Serviced Combination Trust
Mortgage Loan, the release, endorsement or assignment of the documents
constituting the related Mortgage File and Servicing File shall be in the manner
contemplated by Section 3.25 hereof.
(c) The Special Servicer, at any time, may offer to sell any Defaulted
Trust Mortgage Loan not otherwise purchased pursuant to Section 3.18(b) above,
if and when the Special Servicer determines, consistent with the Servicing
Standard, that such a sale would be in the best economic interests of the
Certificateholders (as a collective whole). Such offer shall be made in a
commercially reasonable manner (which, for purposes hereof, includes an offer to
sell without representation or warranty other than customary warranties of title
and condition, if liability for breach thereof is limited to recourse against
the Trust Fund) for a period of not less than 10 days. Subject to Sections
3.18(g), and further subject to Sections 6.11, 6.12, 6.13, 6.14 and/or 6.15, in
each case if and as applicable, the Special Servicer shall accept the highest
cash bid received from any Person that constitutes a fair price for such Trust
Mortgage Loan.
If the Special Servicer accepts the bid of a prospective purchaser in
accordance with this Section 3.18(c), such purchaser shall be required to
purchase the subject Defaulted Trust Mortgage Loan within ten (10) Business Days
of receipt of notice of such acceptance.
Notwithstanding the foregoing, if a Defaulted Trust Mortgage Loan
purchased pursuant to this Section 3.18(c) is a Serviced Combination Trust
Mortgage Loan, the release, endorsement or assignment of the documents
constituting the related Mortgage File and Servicing File shall be in the manner
contemplated by Section 3.25 hereof.
The Special Servicer shall use its best efforts to solicit bids for
each Administered REO Property in such manner as will be reasonably likely to
realize a fair price within the time period provided for by Section 3.16(a).
Subject to Section 3.18(f), and further subject to Sections 6.11, 6.12, 6.13,
6.14 and/or 6.15, in each case if and as applicable, the Special Servicer shall
accept the first (and, if multiple bids are received contemporaneously or
subsequently, the highest) cash bid received from any Person that constitutes a
fair price for such Administered REO Property. If the Special Servicer
reasonably believes that it will be unable to realize a fair price for any
Administered REO Property within the time constraints imposed by Section
3.16(a), then (subject to Section 6.11, 6.12, 6.13, 6.14 or 6.15, as applicable)
the Special Servicer shall dispose of such Administered REO Property upon such
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terms and conditions as the Special Servicer shall deem necessary and desirable
to maximize the recovery thereon under the circumstances and, in connection
therewith, shall accept the highest outstanding cash bid, regardless of from
whom received.
The Special Servicer shall give the Trustee and the Depositor prior
written notice of its intention to sell any Defaulted Trust Mortgage Loan or
Administered REO Property pursuant to this Section 3.18(c).
No Interested Person shall be obligated to submit a bid to purchase
any such Defaulted Trust Mortgage Loan or Administered REO Property, and
notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may bid for or purchase any
Defaulted Trust Mortgage Loan or any Administered REO Property pursuant hereto.
An Interested Person (other than the Trustee or any of its Affiliates) shall not
be prohibited from bidding on and purchasing a Defaulted Trust Mortgage Loan in
accordance with the terms of this Section 3.18.
(d) Whether any cash bid constitutes a fair price for any Defaulted
Trust Mortgage Loan or Administered REO Property, as the case may be, for
purposes of Section 3.18(c), shall be determined by the Special Servicer or, if
such cash bid is from the Special Servicer or an Affiliate of the Special
Servicer, by the Trustee. In determining whether any bid received from the
Special Servicer or an Affiliate of the Special Servicer represents a fair price
for any such Defaulted Trust Mortgage Loan or Administered REO Property, the
Trustee shall be supplied with and shall be entitled to rely on the most recent
appraisal of the related Mortgaged Property or subject Administered REO
Property, as the case may be, in the related Servicing File conducted in
accordance with this Agreement within the preceding 12-month period (or, in the
absence of any such appraisal or if there has been a material change at the
related Mortgaged Property or the subject Administered REO Property, as the case
may be, since any such appraisal, on a new appraisal to be obtained by the
Special Servicer or, if the Special Servicer or an Affiliate thereof is bidding,
the Trustee (the cost of which shall be covered by, and be reimbursable as, a
Servicing Advance)). The appraiser conducting any such new appraisal shall be an
Independent Appraiser selected by the Special Servicer if neither the Special
Servicer nor any Affiliate thereof is bidding with respect to a Defaulted Trust
Mortgage Loan or Administered REO Property and selected by the Trustee if either
the Special Servicer or any Affiliate thereof is so bidding. Where any
Interested Person is among those bidding with respect to a Defaulted Trust
Mortgage Loan or Administered REO Property, the Special Servicer shall require
that all bids be submitted to it (and, if the Special Servicer or any Affiliate
thereof is bidding, to the Trustee) in writing and be accompanied by a
refundable deposit of cash in an amount equal to 5% of the bid amount. In
determining whether any bid from a Person other than itself or one of its
Affiliates constitutes a fair price for any such Defaulted Trust Mortgage Loan
or Administered REO Property, the Special Servicer shall take into account the
results of any appraisal or updated appraisal that it or the Master Servicer may
have obtained in accordance with this Agreement within the prior twelve months,
and any Independent Appraiser shall be instructed to take into account, as
applicable, among other factors, the period and amount of any delinquency on the
affected Trust Mortgage Loan, the occupancy level and physical condition of the
related Mortgaged Property or subject Administered REO Property, as the case may
be, the state of the local economy and the obligation to dispose of any
Administered REO Property within the time period specified in Section 3.16(a).
The Purchase Price for any such Defaulted Trust Mortgage Loan or Administered
REO Property shall in all cases be deemed a fair price. Notwithstanding the
other provisions of this Section 3.18, no cash bid from the Special Servicer or
any Affiliate thereof shall constitute a fair price for any Defaulted Trust
Mortgage Loan or Administered REO Property unless
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such bid is the highest cash bid received and at least two independent bids (not
including the bid of the Special Servicer or any Affiliate) have been received.
In the event the bid of the Special Servicer or any Affiliate thereof is the
only bid received or is the higher of only two bids received, then additional
bids shall be solicited. If an additional bid or bids, as the case may be, are
received and the original bid of the Special Servicer or any Affiliate thereof
is the highest of all cash bids received, then the bid of the Special Servicer
or such Affiliate shall be accepted, provided that the Trustee has otherwise
determined, as provided above in this Section 3.18(d), that such bid constitutes
a fair price for the subject Defaulted Trust Mortgage Loan or Administered REO
Property, as the case may be. Any bid by the Special Servicer shall be
unconditional; and, if accepted, the subject Defaulted Trust Mortgage Loan or
Administered REO Property shall be transferred to the Special Servicer without
recourse, representation or warranty other than customary representations as to
title given in connection with the sale of a mortgage loan or real property.
(e) Subject to Sections 3.18(a) through 3.18(d) above, and further
subject to Section 6.11, 6.12, 6.13, 6.14 and/or 6.15, in each case if and as
applicable, the Special Servicer shall act on behalf of the Trustee in
negotiating with independent third parties and taking any other action necessary
or appropriate in connection with the sale of any Defaulted Trust Mortgage Loan
or Administered REO Property pursuant to this Section 3.18, including the
collection of all amounts payable in connection therewith. In connection
therewith, the Special Servicer may charge prospective bidders, and may retain,
fees that approximate the Special Servicer's actual costs in the preparation and
delivery of information pertaining to such sales or evaluating bids, without
obligation to deposit such amounts into the Pool Custodial Account. Any sale of
a Defaulted Trust Mortgage Loan or an Administered REO Property pursuant to this
Section 3.18 shall be final and without recourse to the Trustee or the Trust,
and if such sale is consummated in accordance with the terms of this Agreement,
neither the Special Servicer nor the Trustee shall have any liability to any
Certificateholder with respect to the purchase price therefor accepted by the
Special Servicer or the Trustee.
(f) Any sale of a Defaulted Trust Mortgage Loan or any Administered
REO Property pursuant to this Section 3.18 shall be for cash only and shall be
on a servicing released basis. The provisions of this Section 3.18 shall in no
way limit the obligations of the Special Servicer to proceed with respect to any
Specially Serviced Trust Mortgage Loan in accordance with Section 3.09 at the
same time that such Trust Mortgage Loan may be offered or eligible for sale in
accordance with this Section 3.18.
(g) Notwithstanding any of the foregoing paragraphs of this Section
3.18, the Special Servicer shall not be obligated to accept the highest cash bid
for a Defaulted Mortgage Loan or an Administered REO Property, as the case may
be, if the Special Servicer determines, in accordance with the Servicing
Standard, that rejection of such bid would be in the best interests of the
Certificateholders (or, in the case of an Administered REO Property that relates
to a Serviced Loan Combination, the best interests of the Certificateholders and
the related Serviced Non-Trust Mortgage Loan Noteholder(s)), as a collective
whole. In addition, the Special Servicer may, subject to Section 6.11, 6.12,
6.13, 6.14 or 6.15, as applicable, accept a lower cash bid (from any Person
other than itself or an Affiliate) if it determines, in accordance with the
Servicing Standard, that acceptance of such bid would be in the best interests
of the Certificateholders (or, in the case of an Administered REO Property that
relates to a Serviced Loan Combination, the best interests of the
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s)), as a collective whole (for example, if the prospective buyer
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making the lower bid is more likely to perform its obligations or the terms
(other than price) offered by the prospective buyer making the lower bid are
more favorable).
(h) The purchase option for any Defaulted Trust Mortgage Loan pursuant
to Section 3.18(b) shall terminate, and shall not be exercisable as set forth in
Section 3.18(b) (or if exercised, but the purchase of such Defaulted Trust
Mortgage Loan has not yet occurred, shall terminate and be of no further force
or effect), and the Special Servicer may no longer sell a Defaulted Trust
Mortgage Loan pursuant to Section 3.18(c), if and when (i) such Defaulted Trust
Mortgage Loan has become a Corrected Mortgage Loan or otherwise ceased to
satisfy the criteria for a "Defaulted Trust Mortgage Loan", (ii) the related
Mortgaged Property has become an Administered REO Property, (iii) a Final
Recovery Determination has been made with respect to such Defaulted Trust
Mortgage Loan or (iv) the subject Defaulted Trust Mortgage Loan has been removed
from the Trust Fund.
(i) [Reserved.]
(j) Notwithstanding anything to the contrary herein:
(i) the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholder will
be entitled to purchase the 000 Xxxxx Xxxxxx Trust Mortgage Loan in
accordance with the terms and conditions set forth in the 000 Xxxxx Xxxxxx
Co-Lender Agreement, even after it has been purchased out of the Trust Fund
pursuant to the purchase option provided for in this Section 3.18. For so
long as the 000 Xxxxx Xxxxxx Trust Mortgage Loan is part of the Trust Fund,
the Master Servicer or the Special Servicer, as applicable, shall determine
the price to be paid therefor and shall provide such notices to the 000
Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholder as are required by the 000
Xxxxx Xxxxxx Co-Lender Agreement with respect to such holder's purchase
rights;
(ii) the GIC Office Subordinate Non-Trust Mortgage Loan
Noteholder will be entitled to purchase the GIC Office Trust Mortgage Loan
(together with the other GIC Office Pari Passu Non-Trust Mortgage Loans) in
accordance with the terms and conditions set forth in, and at the purchase
price set forth in, the GIC Office Co-Lender Agreement and the GIC Office
Servicing Agreement; further the GIC Office Trust Mortgage Loan, if it
becomes a specially serviced mortgage loan under the GIC Office Servicing
Agreement, will be subject to sale in accordance with terms and provisions
of, and at the purchase price set forth in, Section 3.18 of the GIC Office
Servicing Agreement in effect as of the date hereof (or any comparable
section of any successor GIC Office Servicing Agreement). In connection
with any such purchase, the Master Servicer or the Special Servicer, as
applicable, shall comply with the terms and provisions thereof in
connection with effecting such sale;
(iii) the Somerset Collection Subordinate Non-Trust Mortgage Loan
Noteholder will be entitled to purchase the Somerset Collection Trust
Mortgage Loan (together with the Somerset Collection Pari Passu Non-Trust
Mortgage Loan) in accordance with the terms and conditions set forth in the
Somerset Collection Co-Lender Agreement, even after it has been purchased
out of the Trust Fund pursuant to the purchase option provided for in this
Section 3.18. For so long as the Somerset Collection Trust Mortgage Loan is
part of the Trust Fund, the Master Servicer or the Special Servicer, as
applicable, shall determine the price to be paid therefor and shall provide
such notices to the Somerset Collection Subordinate Non-Trust
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Mortgage Loan Noteholder as are required by the Somerset Collection
Co-Lender Agreement with respect to such holder's purchase rights; and
(iv) each of the Xxxxxxxx Place Non-Trust Mortgage Loan
Noteholder and the Shops at Cumberland Non-Trust Mortgage Loan Noteholder
will be entitled to purchase the related Trust Mortgage Loan in accordance
with the terms and conditions set forth in the related Co-Lender Agreement,
even after the subject Trust Mortgage Loan has been purchased out of the
Trust Fund pursuant to the purchase option provided for in this Section
3.18. For so long as such related Trust Mortgage Loan is part of the Trust
Fund, the Master Servicer or the Special Servicer, as applicable, shall
determine the price to be paid therefor and shall provide such notices to
the subject Serviced Non-Trust Mortgage Loan Noteholder as are required by
the related Co-Lender Agreement with respect to such holder's purchase
rights.
SECTION 3.19. Additional Obligations of the Master Servicer;
Obligations to Notify Ground Lessors and
Hospitality Franchisors; the Special Servicer's
Right to Request the Master Servicer to Make
Servicing Advances.
(a) The Master Servicer shall deliver to the Trustee for deposit in
the Collection Account on each Trust Master Servicer Remittance Date, without
any right of reimbursement therefor, an amount equal to the lesser of (i) the
aggregate amount of all Prepayment Interest Shortfalls, if any, incurred in
connection with Principal Prepayments Received by the Trust during the most
recently ended applicable Collection Period, with respect to Performing Trust
Mortgage Loans and (ii) the sum of (1) the aggregate of all Master Servicing
Fees received by the Master Servicer during such Collection Period with respect
to the entire Mortgage Pool (but only to the extent of that portion thereof
calculated at a rate of 0.01% per annum with respect to each and every Trust
Mortgage Loan and REO Trust Mortgage Loan) and (2) the aggregate amount of
Prepayment Interest Excesses received in respect of the entire Mortgage Pool
during such Collection Period; provided, however, that if any Prepayment
Interest Shortfall occurs with respect to any Serviced Trust Mortgage Loan as a
result of the Master Servicer's allowing the Mortgagor to deviate from the terms
of the related loan documents regarding principal prepayments, the Master
Servicer shall be obligated to pay an amount equal to the entire Prepayment
Interest Shortfall with respect to the subject Serviced Trust Mortgage Loan
without any limitation of the kind set forth in clauses (1) and (2) above.
(b) The Master Servicer shall, as to each Serviced Trust Mortgage Loan
which is secured by the interest of the related Mortgagor under a Ground Lease,
even if the corresponding fee interest is encumbered, promptly (and in any event
within 60 days) following the Closing Date, notify the related ground lessor of
the transfer of such Serviced Trust Mortgage Loan to the Trust Fund pursuant to
this Agreement and inform such ground lessor that any notices of default under
the related Ground Lease should thereafter be forwarded to the Master Servicer.
(c) The Master Servicer shall, as to each Serviced Trust Mortgage Loan
which is secured by the interest of the related Mortgagor in a hospitality
property, not later than the later of (i) 30 days following the Master
Servicer's receipt of the subject franchise agreement and (ii) the expiration of
the period that may be required for such notice pursuant to the terms of the
applicable franchise documents, if any, notify the related hospitality
franchisor of the transfer of such Serviced Trust Mortgage Loan to the Trust
Fund pursuant to this Agreement and inform such hospitality franchisor that
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any notices of default under the related franchise agreement should thereafter
be forwarded to the Master Servicer.
(d) Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer is required under this Agreement to make any
Servicing Advance but does not desire to do so, the Special Servicer may, in its
sole discretion, request that the Master Servicer make such Servicing Advance,
such request to be made, in writing, at least five (5) Business Days (or, in an
emergency situation or on an urgent basis, two (2) Business Days, provided that
the written request sets forth the nature of the emergency or the basis of the
urgency) in advance of the date on which such Servicing Advance is required to
be made hereunder and to be accompanied by such information and documentation
regarding the subject Servicing Advance as the Master Servicer may reasonably
request. The Master Servicer shall have the obligation to make any such
Servicing Advance that it is so requested by the Special Servicer to make,
within five (5) Business Days (or, in an emergency situation or on an urgent
basis, two (2) Business Days) of the Master Servicer's receipt of such request.
If the request is timely and properly made, the Special Servicer shall be
relieved of any obligations with respect to a Servicing Advance that it so
requests the Master Servicer to make (regardless of whether or not the Master
Servicer shall make such Servicing Advance). The Master Servicer shall be
entitled to reimbursement for any Servicing Advance made by it at the direction
of the Special Servicer, together with interest thereon in accordance with
Sections 3.05(a), 3.05A, 3.05B, 3.05C, 3.05D and/or 3.11(g), as applicable, at
the same time, in the same manner and to the same extent as the Master Servicer
is entitled with respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(d), the
Master Servicer shall not be required to make at the direction of the Special
Servicer, any Servicing Advance if the Master Servicer determines in its
reasonable, good faith judgment that such Servicing Advance, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
in fact a Nonrecoverable Servicing Advance. The Master Servicer shall notify the
Special Servicer in writing of such determination, which shall be made pursuant
to Section 3.11(h). Any request by the Special Servicer that the Master Servicer
make a Servicing Advance shall be deemed to be a determination by the Special
Servicer that such requested Servicing Advance is not a Nonrecoverable Servicing
Advance, and the Master Servicer, the Trustee and any Fiscal Agent shall be
entitled to conclusively rely on such determination. Upon making a
determination, pursuant to Section 3.11(h), that any Servicing Advance
previously made or proposed to be made with respect to a Specially Serviced
Mortgage Loan or an Administered REO Property is a Nonrecoverable Servicing
Advance (subject to clause (1) of the definition of "Nonrecoverable Servicing
Advance"), the Special Servicer shall report to the Master Servicer and the
Trustee the Special Servicer's determination. The Master Servicer shall be
entitled to conclusively rely on such a determination by the Special Servicer.
(e) The Master Servicer and the Special Servicer shall each be
responsible for providing: (i) to the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan
Noteholder and each Subordinate Non-Trust Mortgage Loan Noteholder such notices
regarding defaults and events of default under the related Serviced Loan
Combination as are required from the Trust, as holder of the Trust Mortgage Loan
that constitutes part of such Serviced Loan Combination; and (iv) to any lender
of related mezzanine debt as may be required from the Trust, as holder of a
Trust Mortgage Loan, under any related co-lender, intercreditor or similar
agreement.
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SECTION 3.20. Modifications, Waivers, Amendments and Consents;
Defeasance.
(a) Subject to Sections 3.20(b) through 3.20(f) and 3.20(l) below, and
further subject to Section 6.11, Section 6.12, Section 6.13, Section 6.14 and/or
Section 6.15, in each case if and as applicable, and any related intercreditor,
co-lender or similar agreement (including, in the case of a Mortgage Loan that
is part of a Serviced Loan Combination, the related Co-Lender Agreement), the
Special Servicer (or, under the limited circumstances set forth in Section
3.20(c), the Master Servicer) may, on behalf of the Trustee and, in the case of
a Serviced Non-Trust Mortgage Loan, the related Serviced Non-Trust Mortgage Loan
Noteholder, agree to any modification, extension, waiver or amendment of any
term of any Serviced Mortgage Loan and respond to various Mortgagor requests for
consent on the part of the mortgagee (including the lease reviews and lease
consents related thereto), without the consent of the Trustee, any
Certificateholder, any Serviced Non-Trust Mortgage Loan Noteholder, the Master
Servicer (in the case of any such action taken by the Special Servicer) or,
except as expressly set forth below, the Special Servicer (in the case of any
such action taken by the Master Servicer). Neither the Master Servicer nor the
Special Servicer (in its capacity as such) may agree to any modification,
extension, waiver or amendment of a Mortgage Loan in the GIC Office Loan Group.
(b) All modifications, extensions, waivers or amendments of any
Serviced Mortgage Loan, including the lease reviews and lease consents related
thereto, shall be in writing and shall be considered and effected in a manner
consistent with the Servicing Standard.
(c) In the case of any Performing Serviced Mortgage Loan, and subject
to the rights of the Special Servicer set forth below, the Master Servicer shall
be responsible for responding to any request by a Mortgagor for the consent or
approval of the mortgagee with respect to a modification, extension, waiver or
amendment of any term thereof, provided that such consent or approval or such
modification, extension, waiver or amendment would not (except as permitted by
Sections 3.02(a), 3.03(d), 3.07, 3.08(a) and 3.20(l) and the next paragraph of
this Section 3.20(c)) affect the amount or timing of any of the payment terms of
such Serviced Mortgage Loan (including payment terms related to late payment
charges), result in the release of the related Mortgagor from any material term
thereunder, waive any rights thereunder with respect to any guarantor thereof,
relate to the release, addition or substitution of any material collateral for
such Serviced Mortgage Loan or relate to any waiver of or granting of consent
under a "due-on-sale" or "due-on-encumbrance" clause. With respect to any action
proposed to be taken by the Master Servicer under this Section 3.20(c) where the
thresholds in clauses (i) through (vi) of the next sentence are exceeded, or
which involves the situations set forth in the proviso to the previous sentence,
the Special Servicer only may take such action. To the extent consistent with
the foregoing, but subject to Section 3.20(f), the Master Servicer shall also be
responsible for the following with respect to each Performing Serviced Mortgage
Loan:
(i) Approving any waiver affecting the timing of receipt of
financial statements from any Mortgagor, provided that such financial
statements are delivered no less than quarterly and within 60 days of the
end of the calendar quarter to which such financial statements relate;
(ii) Approving routine leasing activity with respect to leases
for less than the lesser of (A) 50,000 square feet and (B) 20% of the
related Mortgaged Property;
(iii) Approving a transfer of equity in a Mortgagor from one
current equity holder to another, provided that such transfer of equity
does not (A) affect (if applicable) the
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status of such Mortgagor or such equity holder as a special purpose,
bankruptcy-remote entity, (B) result in a change of control of such
Mortgagor, (C) cause the transferee to hold more than 49% of the equity in
such Mortgagor, (D) relate to a Serviced Trust Mortgage Loan that
represents 2% or more of the then aggregate principal balance of the
Mortgage Pool or (E) relate to a Serviced Loan Combination;
(iv) Approving annual budgets for the related Mortgaged Property,
provided that no such budget (A) relates to a fiscal year in which an
Anticipated Repayment Date occurs, (B) provides for the payment of
operating expenses in an amount equal to more than 110% of the amounts
budgeted therefor for the prior year or (C) provides for the payment of any
material expenses to any affiliate of the Mortgagor (other than with
respect to the payment of the management fee to any property manager if
such management fee is no more than the management fee in effect on the
Cut-off Date);
(v) Approving easements or rights of way that do not materially
affect the use or value of a Mortgaged Property or the Mortgagor's ability
to make any payments with respect to the subject Performing Serviced
Mortgage Loan; and
(vi) Approving a change of the property manager at the request of
the related Mortgagor, provided that (A) the successor property manager is
not affiliated with the Mortgagor and is a nationally or regionally
recognized manager of similar properties and (B) the related Serviced Trust
Mortgage Loan does not represent 2% or more of the then aggregate principal
balance of the Mortgage Pool.
Subject to Section 6.11, Section 6.12, Section 6.13, Section 6.14 or
Section 6.15, in each case if and as applicable, subject to the Servicing
Standard, and further subject to the second sentence of the next paragraph and
the second paragraph of Section 3.20(e), the Master Servicer may, upon the
occurrence of a potential default in the making of a Balloon Payment on a
Performing Five-Year Mortgage Loan, extend the maturity date of such Performing
Five-Year Mortgage Loan for up to six months; provided that the Master Servicer
may only approve two such six-month extensions of the maturity date of any
Performing Five-Year Mortgage Loan.
Except as permitted by Section 3.02(a), Section 3.03(d), Section 3.07,
Section 3.08(a), this Section 3.20(c) and Section 3.20(l), the Master Servicer
may not agree to waive, modify or amend any term of any Serviced Mortgage Loan
or respond to any Mortgagor requests for mortgagee consent. Furthermore, the
Master Servicer may not agree to any modification, extension, waiver or
amendment of any term of any Serviced Mortgage Loan that would cause an Adverse
REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event
with respect to Grantor Trust V.
(d) Except as provided in Section 3.02(a), Section 3.07, Section 3.08,
Section 3.20(e) or Section 3.20(l), the Special Servicer, on behalf of the
Trustee or, in the case of a Serviced Non-Trust Mortgage Loan, the related
Serviced Non-Trust Mortgage Loan Noteholder, shall not agree or consent to any
modification, extension, waiver or amendment of any term of any Serviced
Mortgage Loan that would:
(i) affect the amount or timing of any scheduled payment of
principal, interest or other amount (including Prepayment Premiums or Yield
Maintenance Charges, but
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excluding Default Interest and other amounts payable as additional
servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge, or effectuate the waiver of
any prepayment restriction thereunder or permit a Principal Prepayment
during any period in which the related Mortgage Note prohibits Principal
Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(d), result in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property without
a corresponding Principal Prepayment in an amount not less than the fair
market value (as determined by an appraisal by an Independent Appraiser
delivered to the Special Servicer at the expense of the related Mortgagor
and upon which the Special Servicer may conclusively rely) of the property
to be released; or
(iv) in the reasonable, good faith judgment of the Special
Servicer, otherwise materially impair the security for such Mortgage Loan
or reduce the likelihood of timely payment of amounts due thereon.
(e) Notwithstanding Section 3.20(d), but subject to Section 6.11,
Section 6.12, Section 6.13, Section 6.14 and/or Section 6.15, in each case if
and as applicable, and the second and third paragraphs of this Section 3.20(e),
the Special Servicer may (i) reduce the amounts owing under any Specially
Serviced Mortgage Loan by forgiving principal, accrued interest (including
Additional Interest) or any Prepayment Premium or Yield Maintenance Charge, (ii)
reduce the amount of the Monthly Payment on any Specially Serviced Mortgage
Loan, including by way of a reduction in the related Mortgage Rate, (iii)
forbear in the enforcement of any right granted under any Mortgage Note,
Mortgage or other loan document relating to a Specially Serviced Mortgage Loan,
(iv) accept a Principal Prepayment on any Specially Serviced Mortgage Loan
during any Lockout Period, or (v) extend the maturity of any Specially Serviced
Mortgage Loan; provided that (A) the related Mortgagor is in monetary default or
material non-monetary default with respect to such Specially Serviced Mortgage
Loan or, in the reasonable, good faith judgment of the Special Servicer, such
default is reasonably foreseeable, (B) in the reasonable, good faith judgment of
the Special Servicer, such modification, extension, waiver or amendment would
increase the recovery on such Specially Serviced Mortgage Loan to
Certificateholders (as a collective whole) or, if a Serviced Loan Combination is
involved, would increase the recovery on such Loan Combination to
Certificateholders and the related Serviced Non-Trust Mortgage Loan
Noteholder(s) (as a collective whole), on a present value basis (the relevant
discounting of anticipated collections that will be distributable to the
Certificateholders (or, in the case of a Serviced Loan Combination, to
Certificateholders and the related Non-Trust Mortgage Loan Noteholder(s)), to be
performed at the related Mortgage Rate(s)), and (C) such modification,
extension, waiver or amendment would not cause an Adverse REMIC Event in respect
of any REMIC Pool or an Adverse Grantor Trust Event with respect to Grantor
Trust V; and provided, further, that any modification, extension, waiver or
amendment of the payment terms of a Serviced Loan Combination shall be
structured so as to be consistent with the allocation and payment priorities set
forth in the related loan documents and the related Co-Lender Agreement, such
that neither the Trust as holder of the Trust Mortgage Loan that constitutes
part of that Serviced Loan Combination nor any of the related Serviced Non-Trust
Mortgage Loan Noteholders shall gain a priority over any other such holder with
respect to any payment, which priority is not, as of the date of the related
Co-Lender Agreement, reflected in such
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loan documents and such Co-Lender Agreement; and provided, further, that, with
respect to any Serviced Loan Combination (other than the 000 Xxxxx Xxxxxx Loan
Pair), to the extent consistent with the Servicing Standard (taking into account
the extent to which the Subordinate Non-Trust Mortgage Loan that is part of such
Serviced Loan Combination is junior to the Senior Serviced Mortgage Loan(s) that
are part of the same Serviced Loan Combination), (1) no waiver, reduction or
deferral of any particular amounts due on any Senior Serviced Mortgage Loan that
is part of such Serviced Loan Combination shall be effected prior to the waiver,
reduction or deferral of the entire corresponding item in respect of the
Subordinate Non-Trust Mortgage Loan that is part of such Serviced Loan
Combination, and (2) no reduction of the Mortgage Rate on any Senior Mortgage
Loan that is part of such Serviced Loan Combination shall be effected prior to
the reduction of the Mortgage Rate on the Subordinate Non-Trust Mortgage Loan
that is part of such Serviced Loan Combination, to the fullest extent possible;
and provided, further, that any of the actions referred to in subclauses (1) and
(2) of the foregoing proviso shall be effected, as between the 000 Xxxxx Xxxxxx
Mortgage Loans, on a pro rata and pari passu basis (in accordance with the 000
Xxxxx Xxxxxx Co-Lender Agreement, and as between the Somerset Collection Pari
Passu Mortgage Loans, on a pro rata and pari passu basis (in accordance with the
Somerset Collection Co-Lender Agreement).
In no event shall the Special Servicer or the Master Servicer: (i)
extend the maturity date of a Serviced Mortgage Loan beyond the date that is two
years prior to the last Rated Final Distribution Date; (ii) extend the maturity
date of any Serviced Mortgage Loan for more than five years beyond its Stated
Maturity Date; or (iii) if the subject Serviced Mortgage Loan is secured solely
or primarily by a Mortgage on the leasehold interest under a Ground Lease (but
not the related fee interest), extend the maturity date of such Serviced
Mortgage Loan beyond the date which is 20 years (or, to the extent consistent
with the Servicing Standard, giving due consideration to the remaining term of
the Ground Lease, 10 years) prior to the expiration of the term of such Ground
Lease.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.20(e) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee and the
Master Servicer (and, in the case of a Serviced Loan Combination, the related
Serviced Non-Trust Mortgage Loan Noteholder(s)) and describing in reasonable
detail the basis for the Special Servicer's determination. The Special Servicer
shall attach to such Officer's Certificate any information including but not
limited to income and expense statements, rent rolls, property inspection
reports and appraisals that support such determination.
(f) Notwithstanding anything to the contrary in this Agreement, none
of the Trustee, the Master Servicer or the Special Servicer, as applicable,
shall give any consent, approval or direction regarding the termination of the
related property manager or the designation of any replacement property manager
or, if such Mortgaged Property is hospitality property, give any consent,
approval or direction regarding the termination of the franchise or the
designation of a new franchise, with respect to any Mortgaged Property that
secures (i) the 000 Xxxxx Xxxxxx Loan Pair, (ii) the Somerset Collection Loan
Group or (iii) a Serviced Trust Mortgage Loan that has an unpaid principal
balance that is at least equal to the lesser of $20,000,000 and 2% of the then
aggregate principal balance of the Mortgage Pool, unless: (1) the mortgagee is
not given discretion under the terms of the related Mortgage Loan to withhold
its consent; or (2) it has received prior written confirmation from each Rating
Agency that such action will not result in an Adverse Rating Event with respect
to any Class of Certificates or, if applicable, any class of Pari Passu
Non-Trust Mortgage Loan Securities rated by such Rating Agency.
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Any party hereto seeking Rating Agency confirmation with respect to
the matters described above shall deliver a Review Package to such Rating
Agency.
(g) Any payment of interest that is deferred pursuant to any
modification, extension, waiver or amendment permitted hereunder, shall not, for
purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Serviced Mortgage Loan, notwithstanding that the terms of
such modification, extension, waiver or amendment so permit. The foregoing shall
in no way limit the Special Servicer's ability to charge and collect from the
Mortgagor costs otherwise collectible under the terms of the related Mortgage
Note.
(h) The Special Servicer or Master Servicer may, as a condition to
granting any request by a Mortgagor for consent, modification, extension, waiver
or indulgence or any other matter or thing, the granting of which is within its
discretion pursuant to the terms of the instruments evidencing or securing the
related Serviced Mortgage Loan and, further, by the terms of this Agreement and
applicable law, require that such Mortgagor pay to it (i) as additional
servicing compensation, a reasonable or customary fee for the additional
services performed in connection with such request, and (ii) any related costs
and expenses incurred by it. Any such fee that is to be shared by the Master
Servicer and the Special Servicer may not be waived or reduced by either such
party without the consent of the other party. In no event shall the Special
Servicer or Master Servicer be entitled to payment for such fees or expenses
unless such payment is collected from the related Mortgagor.
(i) The Special Servicer and Master Servicer shall each notify the
other, any related Sub-Servicers, the Trustee and, if a Serviced Non-Trust
Mortgage Loan is affected, the related Serviced Non-Trust Mortgage Loan
Noteholder, in writing, of any modification, extension, waiver or amendment of
any term of any Serviced Mortgage Loan (including fees charged the Mortgagor)
agreed to by it and the date thereof, and shall deliver to the Trustee or any
related Custodian for deposit in the related Mortgage File (with a copy to be
delivered to or retained by, as applicable, the Master Servicer) and, if a
Serviced Non-Trust Mortgage Loan is affected, the related Serviced Non-Trust
Mortgage Loan Noteholder)), an executed counterpart of the agreement relating to
such modification, extension, waiver or amendment promptly following execution
and delivery thereof, to be followed by an original recorded counterpart
promptly following the recordation (and receipt) thereof.
(j) To the extent that either the Master Servicer or Special Servicer
waives any Default Charge in respect of any Serviced Mortgage Loan, whether
pursuant to Section 3.02(a) or this Section 3.20, the respective amounts of
additional servicing compensation payable to the Master Servicer and the Special
Servicer as Net Default Charges out of such Default Charges shall be reduced
proportionately based upon the respective amounts that would have been payable
thereto as Net Default Charges out of such Default Charges if such waiver had
not been granted.
(k) If, with respect to any Serviced Mortgage Loan (1) under which the
lender can require defeasance in lieu of prepayment, or (2) that permits
defeasance, the Master Servicer shall receive a notice from the related
Mortgagor that it intends to prepay or defease, as applicable, such Serviced
Mortgage Loan in accordance with the terms thereof, then the Master Servicer
shall, subject to the next paragraph and the related loan documents, (i) only in
the case of a Serviced Mortgage Loan under clause (1) above, promptly respond to
such notice in a manner which would require that the Mortgagor pledge Defeasance
Collateral in lieu of such prepayment pursuant to the terms of the related
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Mortgage Note, and (ii) notify each Rating Agency, the Trustee, the Underwriters
and the Special Servicer of the intent to defease such Mortgage Loan, and (iii)
upon the written confirmation from each Rating Agency that the acceptance of a
pledge of the Defeasance Collateral (or, in the case of a Serviced Mortgage Loan
under clause (1) above, that the acceptance of a pledge of the Defeasance
Collateral in lieu of a full prepayment) will not result in an Adverse Rating
Event with respect to any Class of Certificates (or, if the 000 Xxxxx Xxxxxx
Loan Pair or the Somerset Collection Loan Group is involved, any Class of
Certificates or any class of related Pari Passu Non-Trust Mortgage Loan
Securities) rated by such Rating Agency, take such further action as provided in
such Mortgage Note to effectuate such defeasance, including the purchase and
perfection of the Defeasance Collateral on behalf of the Trustee (as mortgagee
of record on behalf of the Certificateholders and, in the case of a Serviced
Loan Combination, the affected Serviced Non-Trust Mortgage Loan Noteholder(s));
provided that the written confirmation contemplated by clause (iii) above shall
not be required (A) from S&P in the case of a Serviced Trust Mortgage Loan (1)
with an unpaid principal balance less than or equal to $20,000,000, (2) that
constitutes less than 5% of the aggregate unpaid principal balance of the
Mortgage Pool and (3) that does not then constitute one of the ten largest
(measured by unpaid principal balance) Trust Mortgage Loans in the Mortgage
Pool, provided that, in lieu of obtaining such written confirmation from S&P,
the Master Servicer delivers to S&P a certification in the form attached hereto
as Exhibit M (a "Defeasance Certificate"), or (B) from Xxxxx'x in the case of
any Serviced Trust Mortgage Loan that does not then constitute one of the ten
largest (measured by unpaid principal balance) Trust Mortgage Loans in the
Mortgage Pool or that does not then constitute one of the ten largest groups
(measured by aggregate unpaid principal balance) of Trust Mortgage Loans with
related Mortgagors, provided that, in lieu of obtaining such written
confirmation from Xxxxx'x, the Master Servicer delivers to Xxxxx'x a Defeasance
Certificate; and provided, further, that, the written confirmation contemplated
by clause (iii) above shall not be required from S&P and/or Xxxxx'x (provided
the Master Servicer delivers a Defeasance Certificate to the applicable Rating
Agency), as applicable, in the event the subject Serviced Trust Mortgage Loan
complies with the then current applicable guidelines set forth by such Rating
Agency, or the unpaid principal balance of the subject Serviced Trust Mortgage
Loan, the percentage the subject Serviced Trust Mortgage Loan constitutes of the
Mortgage Pool or the relative size of the subject Serviced Trust Mortgage Loan
with respect to the Mortgage Pool, as applicable, does not exceed the then
current applicable threshold for review as set forth by such Rating Agency.
Notwithstanding the foregoing, but subject to the related loan
documents, the Master Servicer shall not permit a pledge of Defeasance
Collateral under a Defeasance Mortgage Loan (exclusive of the GIC Office Trust
Mortgage Loan) if (i) such defeasance would occur within two years of the
Startup Day, (ii) the defeasance collateral shall not be Government Securities;
(iii) all costs to be incurred in connection with such defeasance (including
Rating Agency fees, accountants' fees and costs incurred in connection with any
required opinions of counsel) would not be paid by the related Mortgagor, or
(iv) unless such confirmation is not required pursuant to the first paragraph of
this Section 3.20(k), either Rating Agency does not confirm in writing to the
Master Servicer that the acceptance of a pledge of the Defeasance Collateral (in
lieu of a full prepayment, if applicable) will not result in an Adverse Rating
Event with respect to any Class of Certificates (or, if the 000 Xxxxx Xxxxxx
Loan Pair or the Somerset Collection Loan Group is involved, any Class of
Certificates or any class of related Pari Passu Non-Trust Mortgage Loan
Securities) rated by such Rating Agency.
All expenses related to the defeasance of a Defeasance Mortgage Loan
that is a Serviced Mortgage Loan shall be charged to the related Mortgagor or
other responsible party.
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(l) With respect to any ARD Mortgage Loan after its Anticipated
Repayment Date, the Master Servicer shall be permitted, subject to obtaining the
Special Servicer's consent, to waive (such waiver to be in writing addressed to
the related Mortgagor, with a copy to the Trustee) all or any portion of the
accrued Additional Interest on such ARD Mortgage Loan if (i) such ARD Mortgage
Loan is a Performing Serviced Mortgage Loan, (ii) prior to the related maturity
date, the related Mortgagor has requested the right to prepay such ARD Mortgage
Loan in full together with all payments required under such ARD Mortgage Loan in
connection with such prepayment (except for all or a portion of such accrued
Additional Interest), and (iii) the Master Servicer reasonably believes that it
is waiving an amount of Additional Interest in excess of the amount of such
interest that the related Mortgagor is likely to pay and has determined, in its
reasonable, good faith judgment, that the waiver of the Trust's right to receive
such accrued Additional Interest is reasonably likely to produce a greater
payment to Certificateholders (as a collective whole) on a present value basis
(the relevant discounting of anticipated collections that will be distributable
to Certificateholders to be performed at the related Mortgage Rate) than a
refusal to waive the right to such Additional Interest. Neither the Master
Servicer nor the Special Servicer shall have any liability to the Trust, the
Certificateholders or any other Person so long as such determination is
exercised in accordance with the Servicing Standard.
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Serviced Mortgage Loan that had otherwise been a Performing
Serviced Mortgage Loan, and if the Master Servicer is not also the Special
Servicer, the Master Servicer shall immediately give notice thereof (or, if
applicable, the Special Servicer shall immediately give notice thereof to the
Master Servicer), and the Master Servicer shall deliver a copy of the related
Servicing File, to the Special Servicer and shall use reasonable efforts to
provide the Special Servicer with all information, documents (or copies thereof)
and records (including records stored electronically on computer tapes, magnetic
discs and the like) relating to such Mortgage Loan, either in the Master
Servicer's or any of its directors', officers', employees', affiliates' or
agents' possession or control or otherwise available to the Master Servicer
without undue burden or expense, and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. The Master Servicer shall use reasonable
efforts to comply with the preceding sentence within five (5) Business Days of
the occurrence of each related Servicing Transfer Event (or of notice of the
occurrence of such Servicing Transfer Event, if applicable); provided, however,
that if the information, documents and records requested by the Special Servicer
are not contained in the Servicing File, the Master Servicer shall have such
period of time as reasonably necessary to make such delivery. The Special
Servicer may conclusively rely on the Master Servicer's determination (and the
Master Servicer may conclusively rely on the Special Servicer's determination,
as applicable) that a Servicing Transfer Event has occurred giving rise to a
Serviced Mortgage Loan's becoming a Specially Serviced Mortgage Loan. The
Special Servicer shall not be liable or in default hereunder for any reasonable
act or failure to act because of or arising out of the Master Servicer's failure
to deliver information, documents or records with respect to any Specially
Serviced Mortgage Loan in accordance with the requirements hereof.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan, and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
within five (5) Business Days of such occurrence return the related Servicing
File, together with any and all new information, documents and records relating
to the
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subject Mortgage Loan that were not part of the Servicing File when it was
delivered to the Special Servicer, to the Master Servicer (or such other Person
as may be directed by the Master Servicer) and upon giving such notice, and
returning such Servicing File, to the Master Servicer (or such other Person as
may be directed by the Master Servicer), the Special Servicer's obligation to
service such Mortgage Loan, and the Special Servicer's right to receive the
Special Servicing Fee with respect to such Mortgage Loan shall terminate, and
the obligations of the Master Servicer to service and administer such Mortgage
Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with
the transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Serviced Mortgage Loan upon its becoming a Corrected Mortgage Loan, the Master
Servicer and the Special Servicer shall each transfer to the other, as and when
applicable, the servicing of all other Cross-Collateralized Mortgage Loans
constituting part of the same Cross-Collateralized Group; provided that no
Cross-Collateralized Mortgage Loan may become a Corrected Mortgage Loan at
anytime that a continuing Servicing Transfer Event exists with respect to
another Cross-Collateralized Mortgage Loan in the same Cross-Collateralized
Group.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Custodian originals of newly executed documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File (with a copy of each such original to the Master Servicer), and
shall provide to the Master Servicer copies of any additional related Mortgage
Loan information, including correspondence with the related Mortgagor.
(c) Upon request (and to the extent not otherwise already provided by
the Special Servicer pursuant to its reporting obligations hereunder), the
Special Servicer shall deliver to the Master Servicer, the Trustee and each
Rating Agency (or such other Person as may be directed by the Master Servicer) a
statement in writing and in computer readable format (the form of such statement
to be agreed upon by the Master Servicer and the Special Servicer) describing,
on a loan-by-loan and property-by-property basis, (1) insofar as it relates to
Specially Serviced Mortgage Loans and REO Properties, the information described
in clauses (viii) through (xv) of Section 4.02(a) (with respect to information
set forth in such clauses related to prior Distribution Dates and/or periods,
the Special Servicer may conclusively rely on information furnished to it by the
Master Servicer or the Trustee) and, insofar as it relates to the Special
Servicer, the information described in clauses (xxiv) and (xxx) of Section
4.02(a), (2) the amount of all payments, Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds received, and the amount of any Realized Loss
incurred, with respect to each Specially Serviced Mortgage Loan during the
related Collection Period, and the amount of Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds received, and the amount of any Realized Loss
incurred, with respect to each Administered REO Property during the related
Collection Period, (3) the amount, purpose and date of all Servicing Advances
made by the Special Servicer with respect to each Specially Serviced Mortgage
Loan and Administered REO Property during the related Collection Period, (4) in
writing, a brief narrative summary of the status of each Specially Serviced
Mortgage Loan and (5) such additional information relating to the Specially
Serviced Mortgage Loans and Administered REO Properties as the Master Servicer
reasonably requests to enable it to perform its responsibilities under this
Agreement. Notwithstanding the foregoing provisions of this subsection (c), the
Master Servicer shall maintain ongoing payment records with respect to each of
the Specially Serviced Mortgage Loans and Administered REO Properties and shall
provide the Special Servicer with any
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information reasonably available to the Master Servicer required by the Special
Servicer to perform its duties under this Agreement.
SECTION 3.22. Sub-Servicing Agreements.
(a) Subject to Section 3.22(b) and Section 3.22(f), the Master
Servicer and the Special Servicer may enter into Sub-Servicing Agreements to
provide for the performance by third parties of any or all of their respective
obligations hereunder, provided that in each case, the Sub-Servicing Agreement:
(i) is consistent with this Agreement in all material respects, requires the
Sub-Servicer to comply with all of the applicable conditions of this Agreement
and, with the exception of Sections 7.01(a)(x), (xi) and (xii), provides for
events of default with respect to the Sub-Servicer substantially the same as
those set forth in Section 7.01 (modified as necessary to apply to the
Sub-Servicer's obligations under the Sub-Servicing Agreement); (ii) provides
that if the Master Servicer or the Special Servicer, as the case may be, shall
for any reason no longer act in such capacity hereunder (including by reason of
an Event of Default), the Trustee or its designee may thereupon assume all of
the rights and, except to the extent they arose prior to the date of assumption,
obligations of the Master Servicer or the Special Servicer, as the case may be,
under such agreement or may terminate such sub-servicing agreement without cause
and without payment of any penalty or termination fee (provided, however, that
those Sub-Servicing Agreements in effect as of the Closing Date (or, if being
negotiated as of the Closing Date, in effect within 90 days thereafter) may only
be terminated by the Trustee or its designee as contemplated by Section 3.22(d)
hereof and in such additional manner as is provided in such Sub-Servicing
Agreement); (iii) provides that the Trustee, for the benefit of the
Certificateholders and, in the case of a Sub-Servicing Agreement relating to a
Serviced Loan Combination, the related Serviced Non-Trust Mortgage Loan
Noteholder(s), shall each be a third party beneficiary under such agreement, but
that (except to the extent the Trustee or its designee assumes the obligations
of the Master Servicer or the Special Servicer, as the case may be, thereunder
as contemplated by the immediately preceding clause (ii)) none of the Trustee,
the Trust, any successor Master Servicer or the Special Servicer, as the case
may be, any Serviced Non-Trust Mortgage Loan Noteholder or any Certificateholder
shall have any duties under such agreement or any liabilities arising therefrom;
(iv) permits any purchaser of a Serviced Trust Mortgage Loan pursuant to this
Agreement to terminate such agreement with respect to such purchased Trust
Mortgage Loan at its option and without penalty; (v) does not permit the
Sub-Servicer to enter into or consent to any modification, extension, waiver or
amendment or otherwise take any action on behalf of the Master Servicer or the
Special Servicer contemplated by Section 3.08, Section 3.09 and Section 3.20
hereof without the consent of the Master Servicer or Special Servicer, as the
case may be; and (vi) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund. In
addition, each Sub-Servicing Agreement entered into by the Master Servicer
(including any with an effective date on or before the Closing Date) shall
provide that such agreement shall, with respect to any Serviced Mortgage Loan
serviced thereunder, terminate at the time such Mortgage Loan becomes a
Specially Serviced Mortgage Loan (or, alternatively, be subject to the Special
Servicer's rights to service such Serviced Mortgage Loan for so long as such
Mortgage Loan continues to be a Specially Serviced Mortgage Loan), and each
Sub-Servicing Agreement entered into by the Special Servicer shall relate only
to Specially Serviced Mortgage Loans and shall terminate with respect to any
such Mortgage Loan which ceases to be a Specially Serviced Mortgage Loan. The
Master Servicer and the Special Servicer each shall deliver to the Trustee and
each other copies of all Sub-Servicing Agreements (and, to the related Serviced
Non-Trust Mortgage Loan Noteholder, a copy of any Sub-Servicing Agreement in
respect of a Serviced Non-Trust Mortgage Loan), as well as any amendments
thereto and modifications thereof, entered into by it promptly upon its
execution and
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delivery of such documents. References in this Agreement to actions taken or to
be taken by the Master Servicer or the Special Servicer include actions taken or
to be taken by a Sub-Servicer on behalf of the Master Servicer or the Special
Servicer, as the case may be; and, in connection therewith, all amounts advanced
by any Sub-Servicer to satisfy the obligations of the Master Servicer or the
Special Servicer hereunder to make P&I Advances or Servicing Advances shall be
deemed to have been advanced by the Master Servicer or the Special Servicer, as
the case may be, out of its own funds and, accordingly, such P&I Advances or
Servicing Advances shall be recoverable by such Sub-Servicer in the same manner
and out of the same funds as if such Sub-Servicer were the Master Servicer or
the Special Servicer, as the case may be. For so long as they are outstanding,
Advances shall accrue interest in accordance with Sections 3.11(g) or 4.03(d),
as applicable, such interest to be allocable between the Master Servicer or the
Special Servicer, as the case may be, and such Sub-Servicer as they may agree.
For purposes of this Agreement, the Master Servicer and the Special Servicer
each shall be deemed to have received any payment when a Sub-Servicer retained
by it receives such payment. The Master Servicer and the Special Servicer each
shall notify the other, the Trustee, the Depositor, the Controlling Class
Certificateholders and, if a Serviced Loan Combination is involved, the related
Non-Trust Mortgage Loan Noteholder(s) in writing promptly of the appointment by
it of any Sub-Servicer.
(b) Each Sub-Servicer (i) shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law, and (ii) except
for any Sub-Servicer that is servicing any of the Serviced Mortgage Loans on the
Closing Date, shall be an approved conventional seller/servicer of mortgage
loans for FHLMC or Xxxxxx Xxx or a HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee, the Certificateholders and, in the case of a Serviced Loan
Combination, also for the benefit of the related Serviced Non-Trust Mortgage
Loan Noteholder(s), shall (at no expense to the Trustee, any Certificateholder,
any Serviced Non-Trust Mortgage Loan Noteholder or the Trust Fund) monitor the
performance and enforce the obligations of their respective Sub-Servicers under
the related Sub-Servicing Agreements. Such enforcement, including the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the Master
Servicer or the Special Servicer, as applicable, in its good faith business
judgment, would require were it the owner of the subject Serviced Mortgage
Loans.
(d) In the event of the resignation, removal or other termination of
the Master Servicer or any successor Master Servicer hereunder for any reason,
the Trustee or other Person succeeding such resigning, removed or terminated
party as Master Servicer, shall elect, with respect to any Sub-Servicing
Agreement in effect as of the Closing Date (or, if being negotiated as of the
Closing Date, in effect within 90 days thereafter) that still exists at the time
of such termination: (i) to assume the rights and obligations of the Master
Servicer under such Sub-Servicing Agreement and continue the sub-servicing
arrangements thereunder on the same terms (including the obligation to pay the
same sub-servicing fee); (ii) to enter into a new Sub-Servicing Agreement with
such Sub-Servicer on such terms as the Trustee or other successor Master
Servicer and such Sub-Servicer shall mutually agree (it being understood that
such Sub-Servicer is under no obligation to accept any such new Sub-Servicing
Agreement or to enter into or continue negotiations with the Trustee or other
successor Master Servicer), provided that neither the Trustee nor any successor
Master Servicer shall enter into a new Sub-Servicing Agreement with a
Sub-Servicer that was a party to a Sub-Servicing Agreement as of the Closing
Date, if
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such new Sub-Servicing Agreement amends, alters or fails to restate any rights
of any Underwriter or Mortgage Loan Seller under the existing Sub-Servicing
Agreement with respect to the termination of the Sub-Servicer and the
appointment of a successor thereto or any rights of any Underwriter or Mortgage
Loan Seller as a third party beneficiary under such Sub-Servicing Agreement,
unless the successor Master Servicer has obtained the prior written consent to
the terms of such new Sub-Servicing Agreement from such Underwriter or Mortgage
Loan Seller, as the case may be; or (iii) to terminate the Sub-Servicing
Agreement if (but only if) an Event of Default (as defined in such Sub-Servicing
Agreement) has occurred and is continuing, without paying any sub-servicer
termination fee, and in any additional manner provided for in such Sub-Servicing
Agreement.
The Sub-Servicers as to which Sub-Servicing Agreements are in effect
or being negotiated as of the Closing Date are listed on Exhibit K hereto.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee, the
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholder(s) for
the performance of their respective obligations and duties under this Agreement
in accordance with the provisions hereof to the same extent and under the same
terms and conditions as if each alone were servicing and administering the
Serviced Mortgage Loans and/or Administered REO Properties for which it is
responsible.
(f) Notwithstanding the above, the Special Servicer may not enter into
any Sub-Servicing Agreement without the approval of the Controlling Class
Representative.
SECTION 3.23. Representations and Warranties of the Master Servicer.
(a) The Master Servicer, in such capacity, hereby represents, warrants
and covenants to the other parties hereto and for the benefit of the
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders, as of
the Closing Date, that:
(i) The Master Servicer is a corporation, duly organized under
the laws of the State of Delaware, and the Master Servicer is in compliance
with the laws of each state in which any Mortgaged Property is located to
the extent necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not: (A) violate the Master
Servicer's organizational documents; or (B) constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or other
material instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the good faith and
reasonable judgment of the Master Servicer, would reasonably be expected to
affect materially and adversely either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer.
(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
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(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, receivership, insolvency, reorganization, moratorium
and other laws affecting the enforcement of creditors' (including bank
creditors') rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Master Servicer's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the Master
Servicer to perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer, the outcome
of which, in the Master Servicer's good faith and reasonable judgment,
could reasonably be expected to prohibit the Master Servicer from entering
into this Agreement or materially and adversely affect the ability of the
Master Servicer to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court
or governmental agency or body required under federal or state law for the
execution, delivery and performance by the Master Servicer of or compliance
by the Master Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement has been obtained and is
effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Master Servicer under this Agreement.
(viii) The Master Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(ix) The Master Servicer has reviewed all Sub-Servicing
Agreements in effect as of the Closing Date and will review all
Sub-Servicing Agreements entered into by it after the Closing Date.
(b) The representations and warranties of the Master Servicer set
forth in Section 3.23(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Master Servicer shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 3.23(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.23(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
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SECTION 3.24. Representations and Warranties of the Special Servicer.
(a) The Special Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders, as of
the Closing Date, that:
(i) The Special Servicer is a corporation validly existing and in
good standing under the laws of the State of 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, will not: (A) violate the Special
Servicer's organizational documents; or (B) constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or other
material instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the good faith and
reasonable judgment of the Special Servicer, would reasonably be expected
to affect materially and adversely either the ability of the Special
Servicer to perform its obligations under this Agreement or the financial
condition of the Special Servicer.
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and compliance
with the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer, the outcome
of which, in the Special Servicer's good faith and reasonable judgment,
could reasonably be expected to prohibit the Special Servicer from entering
into this Agreement or materially and adversely affect the ability of the
Special Servicer to perform its obligations under this Agreement.
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(vii) Any consent, approval, authorization or order of any court
or governmental agency or body required under federal or state law for the
execution, delivery and performance by the Special Servicer of or
compliance by the Special Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and is
effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Special Servicer under this Agreement.
(viii) The Special Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(b) The representations and warranties of the Special Servicer set
forth in Section 3.24(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 3.24(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.24(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 3.25. Certain Matters Regarding the Purchase of the 000 Xxxxx
Xxxxxx Trust Mortgage Loan, the GIC Office Trust
Mortgage Loan, the Somerset Collection Trust Mortgage
Loan, the Xxxxxxxx Place Trust Mortgage Loan and the
Cumberland Place Trust Mortgage Loan.
(a) If, pursuant to or as contemplated by Section 2.03, Section 3.18
or Section 9.01, the 000 Xxxxx Xxxxxx Trust Mortgage Loan is purchased or
repurchased from the Trust Fund, the purchaser thereof shall be bound by the
terms of the 000 Xxxxx Xxxxxx Co-Lender Agreement and shall assume the rights
and obligations of the "Note A1 Lender" under the 000 Xxxxx Xxxxxx Co-Lender
Agreement. All portions of the related Mortgage File and other documents
pertaining to the 000 Xxxxx Xxxxxx Trust Mortgage Loan shall be endorsed or
assigned, to the extent necessary or appropriate, to the purchaser of the 000
Xxxxx Xxxxxx Trust Mortgage Loan in its capacity as "Note A1 Lender" (as a
result of such purchase or repurchase) under the 000 Xxxxx Xxxxxx Co-Lender
Agreement in the manner contemplated under such agreement, which such purchaser
shall be deemed to acknowledge. Thereafter such Mortgage File shall be held by
the "Note A1 Lender" or a custodian appointed thereby for the benefit of each of
the "Lenders" as defined under, and as their interests appear under, the 000
Xxxxx Xxxxxx Co-Lender Agreement. If the related Servicing File is not already
in the possession of such party, it shall be delivered to the successor master
servicer or special servicer, as the case may be, with respect to the 000 Xxxxx
Xxxxxx Loan Pair under, or otherwise in accordance with, any applicable separate
servicing agreement for the 000 Xxxxx Xxxxxx Loan Pair or as otherwise
contemplated by the 000 Xxxxx Xxxxxx Co-Lender Agreement.
(b) If, pursuant to or as contemplated by Section 2.03, Section 3.18
or Section 9.01, the GIC Office Trust Mortgage Loan is purchased or repurchased
from the Trust Fund, the purchaser
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thereof shall be bound by the terms of the GIC Office Co-Lender Agreement and
shall assume the rights and obligations of the holder of such Trust Mortgage
Loan under the GIC Office Co-Lender Agreement. All portions of the related
Mortgage File and other documents pertaining to such Trust Mortgage Loan shall
be endorsed or assigned, to the extent necessary or appropriate, to the
purchaser of such Trust Mortgage Loan, and such Mortgage File shall be delivered
to such purchaser.
(c) If, pursuant to or as contemplated by Section 2.03, Section 3.18
or Section 9.01, the Somerset Collection Trust Mortgage Loan is purchased or
repurchased from the Trust Fund, the purchaser thereof shall be bound by the
terms of the Somerset Collection Co-Lender Agreement and shall assume the rights
and obligations of the "Note A1 Lender" under the Somerset Collection Co-Lender
Agreement. All portions of the related Mortgage File and other documents
pertaining to the Somerset Collection Trust Mortgage Loan shall be endorsed or
assigned, to the extent necessary or appropriate, to the purchaser of the
Somerset Collection Trust Mortgage Loan in its capacity as "Note A1 Lender" (as
a result of such purchase or repurchase) under the Somerset Collection Co-Lender
Agreement in the manner contemplated under such agreement, which such purchaser
shall be deemed to acknowledge. Thereafter such Mortgage File shall be held by
the "Note A1 Lender" or a custodian appointed thereby for the benefit of each of
the "Note A Lenders" and the "Note B Lender" (each as defined under, and as
their interests appear under, the Somerset Collection Co-Lender Agreement). If
the related Servicing File is not already in the possession of such party, it
shall be delivered to the successor master servicer or special servicer, as the
case may be, with respect to the Somerset Collection Loan Group under, or
otherwise in accordance with, any applicable separate servicing agreement for
the Somerset Collection Loan Group or as otherwise contemplated by the Somerset
Collection Co-Lender Agreement.
(d) If, pursuant to or as contemplated by Section 2.03, Section 3.18
or Section 9.01, the Xxxxxxxx Place Trust Mortgage Loan is purchased or
repurchased from the Trust Fund, the purchaser thereof shall be bound by the
terms of the Xxxxxxxx Place Intercreditor Agreement and shall assume the rights
and obligations of the "Lead Lender" under the Xxxxxxxx Place Intercreditor
Agreement. All portions of the related Mortgage File and other documents
pertaining to such Trust Mortgage Loan shall be endorsed or assigned, to the
extent necessary or appropriate, to the purchaser of such Trust Mortgage Loan in
its capacity as "Lead Lender" (as a result of such purchase or repurchase) under
the Xxxxxxxx Place Intercreditor Agreement in the manner contemplated under such
agreement, which such purchaser shall be deemed to acknowledge. Thereafter such
Mortgage File shall be held by the "Lead Lender" or a custodian appointed
thereby for the benefit of the "Lead Lender" and the "Co-Lender" as their
interests appear under such Co-Lender Agreement. If the related Servicing File
is not already in the possession of such party, it shall be delivered to the
successor master servicer or special servicer, as the case may be, with respect
to the Xxxxxxxx Place Loan Pair, under, or otherwise in accordance with, any
applicable separate servicing agreement for the Xxxxxxxx Place Loan Pair or as
otherwise contemplated by the Xxxxxxxx Place Intercreditor Agreement.
(e) If, pursuant to or as contemplated by Section 2.03, Section 3.18
or Section 9.01, the Cumberland Place Trust Mortgage Loan is purchased or
repurchased from the Trust Fund, the purchaser thereof shall be bound by the
terms of the Cumberland Place Co-Lender Agreement and shall assume the rights
and obligations of the "Note A Lender" under the Cumberland Place Co-Lender
Agreement. All portions of the related Mortgage File and other documents
pertaining to such Trust Mortgage Loan shall be endorsed or assigned, to the
extent necessary or appropriate, to the purchaser of such Trust Mortgage Loan in
its capacity as "Note A Lender" (as a result of such purchase or
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repurchase) under the Cumberland Place Co-Lender Agreement in the manner
contemplated under such agreement, which such purchaser shall be deemed to
acknowledge. Thereafter such Mortgage File shall be held by the "Note A Lender"
or a custodian appointed thereby for the benefit of the "Note A Lender" and the
"Note B Lender" as their interests appear under such Co-Lender Agreement. If the
related Servicing File is not already in the possession of such party, it shall
be delivered to the successor master servicer or special servicer, as the case
may be, with respect to the Cumberland Place Loan Pair, under, or otherwise in
accordance with, any applicable separate servicing agreement for the Cumberland
Place Loan Pair or as otherwise contemplated by the Cumberland Place Co-Lender
Agreement.
SECTION 3.26. Application of Default Charges.
(a) Any and all Default Charges that are actually collected and
deposited in the Pool Custodial Account with respect to any Trust Mortgage Loan
or REO Trust Mortgage Loan (but, in the case of the GIC Office Trust Mortgage
Loan or any GIC Office REO Trust Mortgage Loan, only to the extent of the
Default Charges remitted to the Trust in accordance with the GIC Office
Servicing Agreement) during any Collection Period, shall be applied for the
following purposes and in the following order, in each case to the extent of the
remaining portion of such Default Charges:
first, to pay to any Fiscal Agent, the Trustee, the Master
Servicer and the Special Servicer, in that order, any interest due and
owing to such party on any outstanding Advances made thereby with respect
to such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be,
which interest on such outstanding Advance accrued on or prior to the date
on which the subject Default Charges were received;
second, to pay any other outstanding expenses (exclusive of
Special Servicing Fees, Liquidation Fees and Workout Fees) incurred with
respect to such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case
may be, that, if paid from collections on the Mortgage Pool other than such
Default Charges, would constitute an Additional Trust Fund Expense;
third, to reimburse the Trust for any interest on Advances paid
to any Fiscal Agent, the Trustee, the Master Servicer or the Special
Servicer since the Closing Date with respect to such Trust Mortgage Loan or
REO Trust Mortgage Loan, as the case may be, which interest payment was
made from collections on the Mortgage Pool other than Default Charges on
such Trust Mortgage Loan or REO Trust Mortgage Loan and was not previously
reimbursed under this clause third;
fourth, to reimburse the Trust for any other Additional Trust
Fund Expenses (exclusive of Special Servicing Fees, Liquidation Fees and
Workout Fees) paid since the Closing Date with respect to such Trust
Mortgage Loan or REO Trust Mortgage Loan, as the case may be, which payment
was made from collections on the Mortgage Pool other than Default Charges
on such Trust Mortgage Loan or REO Trust Mortgage Loan and was not
previously reimbursed under this clause fourth; and
fifth, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") as additional master servicing
compensation to the Master Servicer, to the extent received, if they were
accrued in respect of a Performing Serviced Trust Mortgage Loan, or as
additional special servicing compensation to the Special Servicer, to the
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extent received, if they were accrued in respect of a Specially Serviced
Trust Mortgage Loan or an REO Trust Mortgage Loan, in each case pursuant to
Section 3.11;
provided that any and all Default Charges that are actually collected with
respect to a Serviced Combination Trust Mortgage Loan shall first be applied
pursuant to the applicable section of this Agreement related to permitted
withdrawals from the related Loan Combination Custodial Account (Section 3.05A,
3.05B, 3.05C or 3.05D, as applicable) and the applicable provisions of the
related Co-Lender Agreement; and provided, further, that the total interest on
Advances payable pursuant to clause first above shall take into account the
application of funds on deposit in the respective Loan Combination Custodial
Accounts to pay interest on Advances.
(b) Default Charges applied to reimburse the Trust pursuant to clauses
third and fourth of subsection (a), are intended to be part of the amounts to be
delivered by the Master Servicer to the Trustee pursuant to the first paragraph
of Section 3.04(b) on or before the Trust Master Servicer Remittance Date next
following the applicable Collection Period during which they were received, for
deposit in the Collection Account, subject to application pursuant to Section
3.05(a) for any items payable out of general collections on the Mortgage Pool.
Default Charges applied to pay outstanding interest on Advances in respect of
the related Trust Mortgage Loan or REO Trust Mortgage Loan, as applicable, to
any particular party, pursuant to clause first of subsection (a), shall be
applied to pay such party such interest on Advances in such manner that the
interest that accrued first and has been outstanding the longest shall be paid
first. Default Charges applied to pay outstanding expenses in respect of the
related Trust Mortgage Loan or REO Trust Mortgage Loan, as applicable, pursuant
to clause second of subsection (a), shall be applied to pay such expenses in the
chronological order in which they were incurred. Default Charges applied to
reimburse the Trust pursuant to clauses third and fourth of subsection (a) shall
be deemed to offset either interest paid on Advances or other Additional Trust
Fund Expenses, depending on which clause is applicable, in respect of the
related Trust Mortgage Loan or REO Trust Mortgage Loan, as applicable, in the
chronological order in which such interest accrued or such expenses were
incurred, as applicable (whereupon such interest paid on Advances or such other
Additional Trust Fund Expenses, depending on which clause is applicable, shall
thereafter be deemed to have been paid out of Default Charges in respect of the
related Trust Mortgage Loan or REO Trust Mortgage Loan, as applicable).
(c) Any and all amounts otherwise distributable to a Subordinate
Non-Trust Mortgage Loan Noteholder as Default Charges with respect to a related
Serviced Subordinate Non-Trust Mortgage Loan or any successor REO Mortgage Loan
with respect thereto on any related Master Servicer Remittance Date, in
accordance with the related Co-Lender Agreement, shall be applied for the
following purposes and in the following order, in each case to the extent of the
remaining portion of such amounts and as and to the extent permitted under the
related Co-Lender Agreement, prior to being so distributed to such Subordinate
Non-Trust Mortgage Loan Noteholder:
first, to pay to any Fiscal Agent, the Trustee, the Master
Servicer and the Special Servicer any and all interest on any Servicing
Advances made thereby with respect to the subject Serviced Loan Combination
or any related REO Property, which interest accrued on or prior to the date
on which such amounts otherwise so distributable as Default Charges were
received (such amounts to be applied in accordance with this clause first
with respect to any such particular party in such manner that the earliest
accrued interest shall be paid first); and
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second, either: (A) in the case of the Cumberland Place Loan Pair
or the Xxxxxxxx Place Loan Pair, to pay to any Fiscal Agent, the Trustee,
the Master Servicer and the Special Servicer any and all interest on any
P&I Advances made thereby with respect to the subject Serviced Loan
Combination (other than the Somerset Collection Loan Group) or any
successor REO Mortgage Loan with respect thereto, which interest accrued on
or prior to the date on which such amounts otherwise so distributable as
Default Charges were received (such amounts to be applied in accordance
with this subclause (A) with respect to any such particular party in such
manner that the earliest accrued interest shall be paid first); or (B) in
the case of the Somerset Collection Loan Group, to pay any Fiscal Agent,
the Trustee, any fiscal agent and/or trustee for a Somerset Collection Pari
Passu Securitization Trust, the Master Servicer and any master servicer or
comparable party for a Somerset Collection Pari Passu Securitization Trust
any and all interest on any P&I Advances or comparable delinquency advances
under a Somerset Collection Non-Trust Mortgage Loan Securitization
Agreement made by such party with respect to a Somerset Collection Pari
Passu Mortgage Loan or any successor REO Mortgage Loan with respect to the
foregoing, which interest accrued on or prior to the date on which such
amounts otherwise so distributable as Default Charges were received (such
amounts to be applied in accordance with this subclause (B) with respect to
any such particular party in such manner that the earliest accrued interest
shall be paid first).
Any amounts otherwise distributable to a Subordinate Non-Trust
Mortgage Loan Noteholder as Default Charges with respect to the related Serviced
Subordinate Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto that are applied pursuant to clause first or subclause (A) of
clause second, as applicable, of the preceding paragraph shall be paid to any
Fiscal Agent, the Trustee, the Master Servicer and the Special Servicer, in that
order, in each case up to the total amount of interest on any Advances payable
to such party in accordance with such clause first or second, as applicable.
Any amounts otherwise distributable to the Somerset Collection
Subordinate Non-Trust Mortgage Loan Noteholder as Default Charges with respect
to the Somerset Collection Subordinate Non-Trust Mortgage Loan or any successor
REO Mortgage Loan with respect thereto that are applied pursuant to subclause
(B) of clause second of the second preceding paragraph shall be allocated among
the Somerset Collection Trust Mortgage Loan and the Somerset Collection Pari
Passu Non-Trust Mortgage Loan (or, if applicable, among any successor REO
Mortgage Loans with respect to the foregoing) on a pro rata basis in accordance
with the respective amounts of interest on P&I Advances and/or comparable
delinquency advances contemplated by such subclause (B) of such clause second
with respect to such Mortgage Loans (or, if applicable, such REO Mortgage
Loans). Any amounts otherwise distributable to the Somerset Collection
Subordinate Non-Trust Mortgage Loan Noteholder as Default Charges with respect
to the Somerset Collection Subordinate Non-Trust Mortgage Loan or any successor
REO Mortgage Loan with respect thereto that are allocable to pay interest on P&I
Advances with respect to the Somerset Collection Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto in accordance with
subclause (B) of clause second of the second preceding paragraph and in
accordance with the preceding sentence shall be paid to any Fiscal Agent, the
Trustee and the Master Servicer, in that order, in each case up to the total
amount of interest on P&I Advances payable to such party in accordance with such
subclause (B) of such clause second. Any amounts otherwise distributable to the
Somerset Collection Subordinate Non-Trust Mortgage Loan Noteholder as Default
Charges with respect to the Somerset Collection Subordinate Non-Trust Mortgage
Loan or any successor REO Mortgage Loan with respect thereto that are allocable
to pay interest on advances
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comparable to P&I Advances with respect to the Somerset Collection Pari Passu
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect thereto
in accordance with subclause (B) of clause second of the second preceding
paragraph and in accordance with the second preceding sentence shall be paid to
any fiscal agent, trustee or master servicer under the related Somerset
Collection Pari Passu Non-Trust Mortgage Loan Securitization Agreement, in the
order provided for in such Somerset Collection Pari Passu Non-Trust Mortgage
Loan Securitization Agreement, in each case up to the total amount of interest
on delinquency advances comparable to P&I Advances payable to such party in
accordance with such subclause (B) of such clause second.
(d) Any and all amounts otherwise distributable to the Trust as
Default Charges with respect to a Serviced Combination Trust Mortgage Loan or
any successor REO Trust Mortgage Loan with respect thereto on any related Master
Servicer Remittance Date, in accordance with the related Co-Lender Agreement),
shall be applied for the following purposes and in the following order, in each
case to the extent of the remaining portion of such amounts, prior to being
transferred to the Pool Custodial Account and applied in accordance with Section
3.26(a):
first, to pay to any Fiscal Agent, the Trustee, the Master
Servicer and the Special Servicer, in that order, subject to Section
3.26(f) (if applicable), any and all interest on any Servicing Advances
made thereby with respect to the subject Serviced Loan Combination and/or
any related REO Property, which interest accrued on or prior to the date on
which such amounts otherwise so distributable as Default Charges were
received and which interest is not otherwise payable, pursuant to Section
3.26(c), out of amounts otherwise distributable to any related Subordinate
Non-Trust Mortgage Loan Noteholder as Default Charges with respect to any
related Subordinate Non-Trust Mortgage Loan or any successor REO Mortgage
Loan with respect thereto (such amounts to be applied in accordance with
this clause first with respect to any such particular party in such manner
that the earliest accrued interest shall be paid first); and
second, to pay any Fiscal Agent, the Trustee and the Master
Servicer, in that order, any and all interest on any P&I Advances made by
such party with respect to the subject Serviced Combination Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto, which
interest accrued on or prior to the date on which such amounts otherwise so
distributable as Default Charges were received and which interest is not
otherwise payable, pursuant to Section 3.26(c), out of amounts otherwise
distributable to any related Subordinate Non-Trust Mortgage Loan Noteholder
as Default Charges with respect to any related Subordinate Non-Trust
Mortgage Loan or any successor REO Mortgage Loan with respect thereto (such
amounts to be applied in accordance with this clause second with respect to
any such particular party in such manner that the earliest accrued interest
shall be paid first).
(e) Any and all amounts otherwise distributable to a Pari Passu
Non-Trust Mortgage Loan Noteholder as Default Charges with respect to a related
Serviced Pari Passu Non-Trust Mortgage Loan or any successor REO Mortgage Loan
with respect thereto on any related Master Servicer Remittance Date, in
accordance with the related Co-Lender Agreement, shall be applied for the
following purposes and in the following order, in each case to the extent of the
remaining portion of such amounts and to the extent permitted under the related
Co-Lender Agreement, prior to being so distributed to the applicable Pari Passu
Non-Trust Mortgage Loan Noteholder:
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first, to pay to any Fiscal Agent, the Trustee, the Master
Servicer and the Special Servicer, in that order, subject to Section
3.26(f) (if applicable), any and all interest on any Servicing Advances
made thereby with respect to the subject Serviced Loan Combination and/or
any related REO Property, which interest accrued on or prior to the date on
which such amounts so distributable as Default Charges were received and
which interest is not otherwise payable, pursuant to Section 3.26(c), out
of amounts otherwise distributable to any related Subordinate Non-Trust
Mortgage Loan Noteholder as Default Charges with respect to any related
Subordinate Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto (such amounts to be applied in accordance with this clause
first with respect to any such particular party in such manner that the
earliest accrued interest shall be paid first); and
second, to pay any fiscal agent, trustee and master servicer for
any related Pari Passu Securitization Trust, in the order contemplated by
the related Pari Passu Non-Trust Mortgage Loan Securitization Agreement,
any and all interest on delinquency advances comparable to P&I Advances
made by such party with respect to the subject Serviced Pari Passu
Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto, which interest accrued on or prior to the date on which such
amounts so distributable as Default Charges were received and which
interest is not otherwise payable, pursuant to Section 3.26(c), out of
amounts otherwise distributable to any related Subordinate Non-Trust
Mortgage Loan Noteholder as Default Charges with respect to any related
Subordinate Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto (such amounts to be applied in accordance with this clause
second with respect to any such particular party in such manner that the
earliest accrued interest shall be paid first).
(f) In the case of a Serviced Combination Trust Mortgage Loan and any
related Serviced Pari Passu Non-Trust Mortgage Loan (or with respect to any
successor REO Mortgage Loans with respect thereto), any amounts otherwise
distributable on any subject Master Servicer Remittance Date, in accordance with
the related Co-Lender Agreement, to the related holders thereof as Default
Charges with respect to such Mortgage Loans or any successor REO Mortgage Loan
with respect thereto shall be allocated, on a pro rata and pari passu basis. If
the total amount otherwise distributable on any subject Master Servicer
Remittance Date, in accordance with the related Co-Lender Agreement as Default
Charges with respect to a Serviced Combination Trust Mortgage Loan and any
related Serviced Pari Passu Non-Trust Mortgage Loan (or with respect to any
successor REO Mortgage Loans with respect thereto) exceed the aggregate amount
of interest on the Servicing Advances payable pursuant to clause first of
Section 3.26(d) and clause first of Section 3.26(e), then the respective
portions of such total amount allocable to such Mortgage Loans (or, if
applicable, such REO Mortgage Loans) that are to be applied for such purpose
shall be in the same proportions that the respective unpaid principal balances
of such Mortgage Loans (or, if applicable, such REO Mortgage Loans) bear to one
another.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date prior to the Final Distribution Date,
the Trustee shall, based upon information provided by the Master Servicer and,
if applicable, the Special Servicer, withdraw from the Collection Account and
apply the Available Distribution Amount for such Distribution Date, such
application to be made for the following purposes and in the following order of
priority, in each case to the extent of remaining available funds:
first, to make distributions of interest to the Holders of the
respective Classes of the Senior Certificates, up to an amount equal to, and on
a pro rata basis as among such Classes of Certificateholders in accordance with,
all Distributable Certificate Interest in respect of each such Class of
Certificates for such Distribution Date and, to the extent not previously paid,
for all prior Distribution Dates, if any;
second, to make distributions of principal to the Holders of the
respective Classes of the Class A Certificates, in the following amounts and
order of priority:
(i) to the Holders of the Class A-1 Certificates, up to an amount
(not to exceed the Class Principal Balance of the Class A-1 Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire Adjusted Principal Distribution Amount for such Distribution Date;
(ii) to the Holders of the Class A-2 Certificates, up to an
amount (not to exceed the Class Principal Balance of the Class A-2
Certificates outstanding immediately prior to such Distribution Date) equal
to the entire Adjusted Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to
the Holders of the Class A-1 Certificates pursuant to subclause (i) of this
clause second);
(iii) to the Holders of the Class A-3 Certificates, up to an
amount (not to exceed the Class Principal Balance of the Class A-3
Certificates outstanding immediately prior to such Distribution Date) equal
to the entire Adjusted Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to
the Holders of the Class A-1 and/or Class A-2 Certificates pursuant to a
prior subclause of this clause second); and
(iv) to the Holders of the Class A-4 Certificates, up to an
amount (not to exceed the Class Principal Balance of the Class A-4
Certificates outstanding immediately prior to such Distribution Date) equal
to the entire Adjusted Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Class A Certificates pursuant to a prior
subclause of this clause second);
provided, however, that, notwithstanding the immediately preceding clauses
(i) through (iv), on each Distribution Date coinciding with or following
the Class A Principal Distribution Cross-
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Over Date, but prior to the Final Distribution Date, the Trustee shall make
distributions of principal to the Holders of the respective Classes of the
Class A Certificates, on a pro rata basis in accordance with the respective
Class Principal Balances of those Classes outstanding immediately prior to
such Distribution Date, until the Class Principal Balance of each such
Class has been reduced to zero, in an aggregate amount equal to the entire
Adjusted Principal Distribution Amount for such Distribution Date;
third, to reimburse the Holders of the respective Classes of the Class
A Certificates, up to an amount equal to, and on a pro rata basis as among such
Classes of Certificateholders in accordance with, the Loss Reimbursement Amount
with respect to each such Class of Certificates for such Distribution Date; and
fourth, to make distributions to the Holders of the respective Classes
of the Subordinate Certificates as provided in Section 4.01(b).
All distributions of interest made in respect of either Class of
Interest-Only Certificates on any Distribution Date as provided above in this
Section 4.01(a) shall be made, and deemed to have been made, in respect of the
various REMIC III Components of such Class of Interest-Only Certificates, pro
rata in accordance with the respective amounts of Distributable Component
Interest in respect of such REMIC III Components for such Distribution Date and,
to the extent not previously deemed paid pursuant to this paragraph, for all
prior Distribution Dates, if any.
(b) On each Distribution Date prior to the Final Distribution Date,
after making the distributions in respect of the Senior Certificates provided
for in Section 4.01(a), the Trustee shall, based on information provided by the
Master Servicer and, if applicable, the Special Servicer, apply the Subordinate
Available Distribution Amount for such Distribution Date for the following
purposes and in the following order of priority, in each case to the extent of
remaining available funds:
(i) to make distributions of interest to the Holders of the Class
B Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(ii) after the Class Principal Balances of the Class A
Certificates have been reduced to zero, to make distributions of principal
to the Holders of the Class B Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of the
Class A Certificates pursuant to Section 4.01(a) above);
(iii) to reimburse the Holders of the Class B Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to such Class
of Certificates for such Distribution Date;
(iv) to make distributions of interest to the Holders of the
Class C Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
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(v) after the Class Principal Balance of the Class B Certificates
has been reduced to zero, to make distributions of principal to the Holders
of the Class C Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Adjusted Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance Certificates pursuant to Section 4.01(a) above or
pursuant to any prior clause of this Section 4.01(b));
(vi) to reimburse the Holders of the Class C Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to such Class
of Certificates for such Distribution Date;
(vii) to make distributions of interest to the Holders of the
Class D Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(viii) after the Class Principal Balance of the Class C
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class D Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of any
other Class of Principal Balance Certificates pursuant to Section 4.01(a)
above or pursuant to any prior clause of this Section 4.01(b));
(ix) to reimburse the Holders of the Class D Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to such Class
of Certificates for such Distribution Date;
(x) to make distributions of interest to the Holders of the Class
E Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xi) after the Class Principal Balance of the Class D
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class E Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of any
other Class of Principal Balance Certificates pursuant to Section 4.01(a)
above or pursuant to any prior clause of this Section 4.01(b));
(xii) to reimburse the Holders of the Class E Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to such Class
of Certificates for such Distribution Date;
(xiii) to make distributions of interest to the Holders of the
Class F Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such
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Class of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates, if any;
(xiv) after the Class Principal Balance of the Class E
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class F Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of any
other Class of Principal Balance Certificates pursuant to Section 4.01(a)
above or pursuant to any prior clause of this Section 4.01(b));
(xv) to reimburse the Holders of the Class F Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to such Class
of Certificates for such Distribution Date;
(xvi) to make distributions of interest to the Holders of the
Class G Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xvii) after the Class Principal Balance of the Class F
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class G Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of any
other Class of Principal Balance Certificates pursuant to Section 4.01(a)
above or pursuant to any prior clause of this Section 4.01(b));
(xviii) to reimburse the Holders of the Class G Certificates, up
to an amount equal to the Loss Reimbursement Amount with respect to such
Class of Certificates for such Distribution Date;
(xix) to make distributions of interest to the Holders of the
Class H Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xx) after the Class Principal Balance of the Class G
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class H Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of any
other Class of Principal Balance Certificates pursuant to Section 4.01(a)
above or pursuant to any prior clause of this Section 4.01(b));
(xxi) to reimburse the Holders of the Class H Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to such Class
of Certificates for such Distribution Date;
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(xxii) to make distributions of interest to the Holders of the
Class J Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxiii) after the Class Principal Balance of the Class H
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class J Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of any
other Class of Principal Balance Certificates pursuant to Section 4.01(a)
above or pursuant to any prior clause of this Section 4.01(b));
(xxiv) to reimburse the Holders of the Class J Certificates, up
to an amount equal to the Loss Reimbursement Amount with respect to such
Class of Certificates for such Distribution Date;
(xxv) to make distributions of interest to the Holders of the
Class K Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxvi) after the Class Principal Balance of the Class J
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class K Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of any
other Class of Principal Balance Certificates pursuant to Section 4.01(a)
above or pursuant to any prior clause of this Section 4.01(b));
(xxvii) to reimburse the Holders of the Class K Certificates, up
to an amount equal to the Loss Reimbursement Amount with respect to such
Class of Certificates for such Distribution Date;
(xxviii) to make distributions of interest to the Holders of the
Class L Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxix) after the Class Principal Balance of the Class K
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class L Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of any
other Class of Principal Balance Certificates pursuant to Section 4.01(a)
above or pursuant to any prior clause of this Section 4.01(b));
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(xxx) to reimburse the Holders of the Class L Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to such Class
of Certificates for such Distribution Date;
(xxxi) to make distributions of interest to the Holders of the
Class M Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxxii) after the Class Principal Balance of the Class L
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class M Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of any
other Class of Principal Balance Certificates pursuant to Section 4.01(a)
above or pursuant to any prior clause of this Section 4.01(b));
(xxxiii) to reimburse the Holders of the Class M Certificates, up
to an amount equal to the Loss Reimbursement Amount with respect to such
Class of Certificates for such Distribution Date;
(xxxiv) to make distributions of interest to the Holders of the
Class N Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxxv) after the Class Principal Balance of the Class M
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class N Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of any
other Class of Principal Balance Certificates pursuant to Section 4.01(a)
above or pursuant to any prior clause of this Section 4.01(b));
(xxxvi) to reimburse the Holders of the Class N Certificates, up
to an amount equal to the Loss Reimbursement Amount with respect to such
Class of Certificates for such Distribution Date;
(xxxvii) to make distributions of interest to the Holders of the
Class P Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxxviii)after the Class Principal Balance of the Class N
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class P Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution
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Date to the Holders of any other Class of Principal Balance Certificates
pursuant to Section 4.01(a) above or pursuant to any prior clause of this
Section 4.01(b));
(xxxix) to reimburse the Holders of the Class P Certificates, up
to an amount equal to the Loss Reimbursement Amount with respect to such
Class of Certificates for such Distribution Date;
(xl) to make distributions of interest to the Holders of the
Class Q Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xli) after the Class Principal Balance of the Class P
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class Q Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of any
other Class of Principal Balance Certificates pursuant to Section 4.01(a)
above or pursuant to any prior clause of this Section 4.01(b));
(xlii) to reimburse the Holders of the Class Q Certificates, up
to an amount equal to the Loss Reimbursement Amount with respect to such
Class of Certificates for such Distribution Date;
(xliii) to make distributions of interest to the Holders of the
Class S Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xliv) after the Class Principal Balance of the Class Q
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class S Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Adjusted
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of any
other Class of Principal Balance Certificates pursuant to Section 4.01(a)
above or pursuant to any prior clause of this Section 4.01(b));
(xlv) to reimburse the Holders of the Class S Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to such Class
of Certificates for such Distribution Date;
(xlvi) to make distributions of interest to the Holders of the
Class T Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xlvii) after the Class Principal Balance of the Class S
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class T Certificates, up
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to an amount (not to exceed the Class Principal Balance of such Class of
Certificates outstanding immediately prior to such Distribution Date) equal
to the entire Adjusted Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Principal Balance Certificates pursuant
to Section 4.01(a) above or pursuant to any prior clause of this Section
4.01(b));
(xlviii) to reimburse the Holders of the Class T Certificates, up
to an amount equal to the Loss Reimbursement Amount with respect to such
Class of Certificates for such Distribution Date;
(xlix) to make distributions to the Holders of the Class R-III
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions (other than distributions of Net Prepayment
Consideration) deemed made in respect of the REMIC II Regular Interests on
such Distribution Date pursuant to Section 4.01(j), over (B) the aggregate
distributions made in respect of the Regular Interest Certificates on such
Distribution Date pursuant to Section 4.01(a) above and/or pursuant to
clauses (i) through (xlviii) of this Section 4.01(b);
(l) to make distributions to the Holders of the Class R-II
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions (other than distributions of Net Prepayment
Consideration) deemed made in respect of the REMIC I Regular Interests on
such Distribution Date pursuant to Section 4.01(k), over (B) the aggregate
distributions (other than distributions of Net Prepayment Consideration)
deemed made in respect of the REMIC II Regular Interests on such
Distribution Date pursuant to Section 4.01(j); and
(li) to make distributions to the Holders of the Class R-I
Certificates, up to an amount equal to the excess, if any, of (A) the
Subordinate Available Distribution Amount for such Distribution Date, over
(B) the aggregate distributions made in respect of the Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class P, Class Q, Class S, Class T, Class R-III and Class
R-II Certificates on such Distribution Date pursuant to clauses (i) through
(l) of this Section 4.01(b).
(c) On each Distribution Date, the Trustee shall withdraw from the
Collection Account any amount Received by the Trust with respect to any Trust
Mortgage Loan or REO Trust Mortgage Loan during the related Collection Period
that represents Net Prepayment Consideration and shall distribute such Net
Prepayment Consideration: first, to the Holders of the respective Classes of YM
Principal Balance Certificates that are entitled to distributions of principal
on such Distribution Date, pursuant to Section 4.01(a) or Section 4.01(b), up to
an amount equal to, and pro rata based on, the respective Prepayment
Consideration Entitlements for such Classes of Certificates for such
Distribution Date in connection with such Net Prepayment Consideration; and
second, to the Holders of the Class X-CL Certificates, up to any remaining
portion of such Net Prepayment Consideration.
Any Net Prepayment Consideration or portion thereof distributed in
respect of the Class X-CL Certificates on any Distribution Date shall be deemed
to have been distributed in respect of the respective REMIC III Components of
the Class X-CL Certificates, on a pro rata basis in accordance with the
respective amounts by which the Component Notional Amounts of such REMIC III
Components were reduced on such Distribution Date by deemed distributions of
principal pursuant to Section 4.01(j).
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(d) On each Distribution Date, the Trustee shall withdraw from the
Collection Account any amounts that represent Additional Interest Received by
the Trust during the related Collection Period with respect to the ARD Trust
Mortgage Loans (and any successor REO Trust Mortgage Loans with respect thereto)
and shall distribute such amounts to the Holders of the Class V Certificates.
(e) All distributions made with respect to each Class of Certificates
on each Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Except as otherwise provided below, all such distributions with respect to each
Class on each Distribution Date shall be made to the Certificateholders of the
respective Class of record at the close of business on the related Record Date
and shall be made by wire transfer of immediately available funds to the account
of any such Certificateholder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided the Trustee
with wiring instructions no less than five (5) Business Days prior to (or, in
the case of the initial Distribution Date, no later than) the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to the address of such Certificateholder as it appears in the Certificate
Register. The final distribution on each Certificate (determined, in the case of
a Principal Balance Certificate, without regard to any possible future
reimbursement of any related Loss Reimbursement Amount) will be made in a like
manner, but only upon presentation and surrender of such Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution. Prior to any
termination of the Trust Fund pursuant to Section 9.01, any distribution that is
to be made with respect to a Certificate in reimbursement of a Realized Loss or
Additional Trust Fund Expense previously allocated thereto, which reimbursement
is to occur after the date on which such Certificate is surrendered as
contemplated by the preceding sentence, will be made by check mailed to the
address of the Certificateholder that surrendered such Certificate as such
address last appeared in the Certificate Register or to any other address of
which the Trustee was subsequently notified in writing. If such check is
returned to the Trustee, then the Trustee, directly or through an agent, shall
take such reasonable steps to contact the related Holder and deliver such check
as it shall deem appropriate. Any funds in respect of a check returned to the
Trustee shall be set aside by the Trustee and held uninvested in trust and
credited to the account of the appropriate Holder. The costs and expenses of
locating the appropriate Holder and holding such funds shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If the Trustee has not, after having taken such
reasonable steps, located the related Holder by the second anniversary of the
initial sending of a check, the Trustee shall, subject to applicable law,
distribute the unclaimed funds to the Class R-III Certificateholders.
(f) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law. The Trustee and the Depositor shall perform their respective
obligations under each
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Letter of Representations among the Depositor, the Trustee and the initial
Depository dated as of the Closing Date and pertaining to the Book-Entry
Certificates.
(g) The rights of the Certificateholders to receive distributions from
the proceeds of the Trust Fund with respect to the Certificates, and all rights
and interests of the Certificateholders in and to such distributions, shall be
as set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates with respect to amounts properly previously
distributed on the Certificates.
(h) Except as otherwise provided in Section 9.01, whenever the Trustee
receives written notification of or expects that the final distribution with
respect to any Class of Certificates (determined, in the case of a Class of
Principal Balance Certificates, without regard to any possible future
reimbursement of any Loss Reimbursement Amount with respect to such Class of
Certificates pursuant to Section 4.04(a)) will be made on the next Distribution
Date, the Trustee shall, no later than the second Business Day prior to such
Distribution Date, mail to each Holder of record of such Class of Certificates
on such date a notice to the effect that:
(i) the Trustee expects that the final distribution with respect
to such Class of Certificates will be made on such Distribution Date but
only upon presentation and surrender of such Certificates at the office of
the Certificate Registrar or at such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
the end of the Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(h) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, then the Trustee, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such non-tendering
Certificateholders following the first anniversary of the delivery of such
second notice thereto shall be paid out of such funds. No interest shall accrue
or be payable to any former Holder on any amount held in trust pursuant to this
paragraph. If all of the Certificates as to which notice has been given pursuant
to this Section 4.01(h) shall not have been surrendered for cancellation by the
second anniversary of the delivery of the second notice, the Trustee shall,
subject to applicable law, distribute to the Class R-III Certificateholders all
unclaimed funds and other assets which remain subject thereto.
(i) Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder
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pursuant to federal withholding requirements, the Trustee shall indicate the
amount withheld to such Certificateholders.
(j) All distributions made in respect of each Class of Principal
Balance Certificates on each Distribution Date (including the Final Distribution
Date) pursuant to Section 4.01(a), Section 4.01(b), Section 4.01(c) or Section
9.01 shall be deemed to have first been distributed from REMIC II to REMIC III
with respect to the Corresponding REMIC II Regular Interest(s) for such Class of
Certificates; and all distributions made with respect to each Class of
Interest-Only Certificates on each Distribution Date pursuant to Section
4.01(a), Section 4.01(c) or Section 9.01 and allocable to any particular REMIC
III Component of such Class of Certificates, shall be deemed to have first been
distributed from REMIC II to REMIC III in respect of the Corresponding REMIC II
Regular Interest for such REMIC III Component. In each case, if such
distribution on any such Class of Certificates was a distribution of accrued
interest, of principal, of additional interest (in the form of Net Prepayment
Consideration or any portion thereof) or in reimbursement of any Loss
Reimbursement Amount with respect to such Class of Certificates, then the
corresponding distribution deemed to be made on a REMIC II Regular Interest
pursuant to the preceding sentence (and, if applicable, the second following
paragraph of this Section 4.01(j)) shall be deemed to also be, respectively, a
distribution of accrued interest, of principal, of additional interest (in the
form of Net Prepayment Consideration or any portion thereof) or in reimbursement
of any Loss Reimbursement Amount with respect to such REMIC II Regular Interest.
If a Class of Principal Balance Certificates has two or more
Corresponding REMIC II Regular Interests, then:
(i) deemed distributions of accrued interest made on such
Corresponding REMIC II Regular Interests on any Distribution Date shall be
allocated between or among them, as applicable, on a pro rata basis in
accordance with the respective amounts of Uncertificated Distributable
Interest in respect of such Corresponding REMIC II Regular Interests for
such Distribution Date and, to the extent not previously deemed
distributed, for all prior Distribution Dates, if any;
(ii) deemed distributions of principal made on such Corresponding
REMIC II Regular Interests on any Distribution Date shall be allocated to
them in numeric order (i.e., from lowest number to highest number) of the
respective ending numbers of the respective alphanumeric designations for
such Corresponding REMIC II Regular Interests, in each case up to an amount
equal to the Uncertificated Principal Balance of the subject Corresponding
REMIC II Regular Interest outstanding immediately prior to such
Distribution Date (such that no deemed distributions of principal will be
made on any such Corresponding REMIC II Regular Interest until the
Uncertificated Principal Balance of each other such Corresponding REMIC II
Regular Interest, if any, with an alphanumeric designation that ends in a
lower number, has been paid in full);
(iii) deemed distributions of additional interest (in the form of
Net Prepayment Consideration or any portion thereof) made on such
Corresponding REMIC II Regular Interests on any Distribution Date shall be
allocated between or among them, as applicable, on a pro rata basis in
accordance with the respective amounts of principal deemed
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distributed in respect of such Corresponding REMIC II Regular Interests on
such Distribution Date; and
(iv) deemed distributions made on such Corresponding REMIC II
Regular Interests on any Distribution Date in reimbursement of the Loss
Reimbursement Amounts with respect thereto shall be allocated to them in
reverse order that deemed distributions of principal made on such
Corresponding REMIC II Regular Interests are allocated to them pursuant to
subclause (ii) of this paragraph, in each case, up to the amount of the
Loss Reimbursement Amount with respect to the subject REMIC II Regular
Interest for such Distribution Date.
The actual distributions made by the Trustee on each Distribution Date
in respect of the REMIC III Certificates pursuant to Section 4.01(a), Section
4.01(b), Section 4.01(c) or Section 9.01, as applicable, shall be deemed to have
been so made from the amounts deemed distributed with respect to the REMIC II
Regular Interests on such Distribution Date pursuant to this Section 4.01(j).
Notwithstanding the deemed distributions on the REMIC II Regular Interests
described in this Section 4.01(j), actual distributions of funds from the
Collection Account shall be made only in accordance with Section 4.01(a),
Section 4.01(b), Section 4.01(c), Section 4.01(d) or Section 9.01, as
applicable.
(k) On each Distribution Date, including the Final Distribution Date,
the Available Distribution Amount for such Distribution Date shall be deemed to
have been distributed from REMIC I to REMIC II for the following purposes and in
the following order of priority, in each case to the extent of the remainder of
such funds:
(i) as deemed distributions of interest with respect to all the
REMIC I Regular Interests, up to an amount equal to, and pro rata in
accordance with, all Uncertificated Distributable Interest with respect to
each REMIC I Regular Interest for such Distribution Date and, to the extent
not previously deemed distributed, for all prior Distribution Dates, if
any;
(ii) as deemed distributions of principal with respect to all the
REMIC I Regular Interests, up to an amount equal to, and pro rata in
accordance with, as to each REMIC I Regular Interest, the portion of the
Principal Distribution Amount for such Distribution Date attributable to
the related Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto; and
(iii) as deemed distributions of reimbursement with respect to
all the REMIC I Regular Interests, up to an amount equal to, and pro rata
in accordance with, any Loss Reimbursement Amount with respect to each
REMIC I Regular Interest for such Distribution Date (with compounded
interest at the related REMIC I Remittance Rate in effect from time to time
on the aggregate amount of unreimbursed reductions made from time to time
in the Uncertificated Principal Balance of such REMIC I Regular Interest
pursuant to Section 4.04(c)).
Any Net Prepayment Consideration distributed to any Class of Regular
Interest Certificates on any Distribution Date shall, in each case, be deemed to
have been distributed from REMIC I to REMIC II in respect of the REMIC I Regular
Interest corresponding to the prepaid Trust Mortgage Loan or REO Trust Mortgage
Loan, as the case may be, in respect of which such Net Prepayment Consideration
was received.
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The actual distributions made by the Trustee on each Distribution Date
in respect of the REMIC III Certificates and the Class R-II Certificates
pursuant to Section 4.01(a), Section 4.01(b), Section 4.01(c) or Section 9.01,
as applicable, as well as the deemed distributions made on each Distribution
Date in respect of the REMIC II Regular Interests pursuant to Section 4.01(j),
shall be deemed to have been so made from the amounts deemed distributed with
respect to the REMIC I Regular Interests on such Distribution Date pursuant to
this Section 4.01(k). Notwithstanding the deemed distributions on the REMIC I
Regular Interests described in this Section 4.01(k), actual distributions of
funds from the Collection Account shall be made only in accordance with Section
4.01(a), Section 4.01(b), Section 4.01(c), Section 4.01(d) or Section 9.01, as
applicable.
SECTION 4.02. Statements to Certificateholders; CMSA Loan Periodic
Update File.
(a) On each Distribution Date, the Trustee shall provide or make
available electronically to the Depositor, the Underwriters, the Master
Servicer, the Special Servicer, the Controlling Class Representative, each
Rating Agency, the Holders of each Class of Certificates and, upon their written
request to the Trustee, any Certificate Owners of the Book-Entry Certificates as
may be identified to the reasonable satisfaction of the Trustee, a statement,
substantially in the form attached hereto as Exhibit B (a "Distribution Date
Statement"), together with the CMSA Bond Level File, the CMSA Collateral Summary
File and the Mortgage Pool Data Update Report, based on information provided to
it by the Master Servicer and/or the Special Servicer, setting forth, without
limitation:
(i) the amount of the distribution on such Distribution Date to
the Holders of each Class of Principal Balance Certificates in reduction of
the Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Interest Certificates allocable to
Distributable Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Interest Certificates allocable to
Prepayment Premiums and Yield Maintenance Charges, respectively;
(iv) the amount of the distribution on such Distribution Date to
the Holders of each Class of Principal Balance Certificates in
reimbursement of any related Loss Reimbursement Amount for such
Distribution Date;
(v) the Available Distribution Amount for such Distribution Date;
(vi) the aggregate amount of P&I Advances made in respect of the
Mortgage Pool for the prior Distribution Date pursuant to Section 4.03(a);
(vii) (A) the aggregate amount of xxxxxxxxxxxx X&X Advances that
had been outstanding with respect to the Mortgage Pool at the close of
business on the related Determination Date and the aggregate amount of any
interest accrued and payable to the Master Servicer, the Trustee or any
Fiscal Agent in respect of such xxxxxxxxxxxx X&X Advances in accordance
with Section 4.03(d) as of the close of business on such related
Determination Date and (B) the aggregate amount of unreimbursed Servicing
Advances that had been outstanding
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with respect to the Mortgage Pool as of the close of business on the
related Determination Date and the aggregate amount of interest accrued and
payable to the Master Servicer, the Special Servicer, the Trustee or any
Fiscal Agent in respect of such unreimbursed Servicing Advances in
accordance with Section 3.11(g) as of the close of business on such related
Determination Date;
(viii) the aggregate unpaid principal balance of the Mortgage
Pool outstanding as of the close of business on the related Determination
Date (or, in the case of the GIC Office Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto, as of the end of
the related GIC Office Collection Period) and the aggregate Stated
Principal Balance of the Mortgage Pool outstanding immediately before and
immediately after such Distribution Date;
(ix) the number, aggregate unpaid principal balance, weighted
average remaining term to maturity and weighted average Mortgage Rate of
the Trust Mortgage Loans (other than REO Trust Mortgage Loans) as of the
close of business on the related Determination Date (or, in the case of the
GIC Office Trust Mortgage Loan, as of the end of the related GIC Office
Collection Period);
(x) the number, aggregate unpaid principal balance (as of the
close of business on the related Determination Date and aggregate Stated
Principal Balance (immediately after such Distribution Date) of Trust
Mortgage Loans (A) delinquent 30 to 59 days, (B) delinquent 60 to 89 days,
(C) delinquent 90 or more days, (D) as to which foreclosure proceedings
have been commenced, and (E) as to which, to the knowledge of the Master
Servicer or the Special Servicer, as applicable, bankruptcy proceedings
have commenced in respect of the related Mortgagor;
(xi) as to each Trust Mortgage Loan referred to in the preceding
clause (x) above, (A) the loan number thereof, (B) the Stated Principal
Balance thereof immediately following such Distribution Date and (C)
whether the delinquency is in respect of its Balloon Payment;
(xii) with respect to any Trust Mortgage Loan as to which a
Liquidation Event occurred during the related Collection Period (or, in the
case of a Final Recovery Determination with respect to the GIC Office Trust
Mortgage Loan, during the related GIC Office Collection Period) (other than
a payment in full), (A) the loan number thereof, (B) the nature of the
Liquidation Event and, in the case of a Final Recovery Determination, a
brief description of the basis for such Final Recovery Determination, (C)
the aggregate of all Liquidation Proceeds and other amounts received in
connection with such Liquidation Event (separately identifying the portion
thereof allocable to distributions on the Certificates), and (D) the
aggregate amount of any Realized Loss and Additional Trust Fund Expenses in
connection with such Liquidation Event;
(xiii) with respect to any REO Property that was included (or an
interest in which was included) in the Trust Fund as of the close of
business on the related Determination Date (or, in the case of any GIC
Office REO Property, as of the end of the related GIC Office Collection
Period), the loan number of the related Trust Mortgage Loan, the book value
of such REO Property and the amount of REO Revenues and other amounts, if
any, Received by the Trust with respect to such REO Property during the
related Collection Period (separately
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identifying the portion thereof allocable to distributions on the
Certificates) and, if available, the Appraised Value of such REO Property
as expressed in the most recent appraisal thereof and the date of such
appraisal;
(xiv) with respect to any Trust Mortgage Loan as to which the
related Mortgaged Property became an REO Property during the related
Collection Period (or, in the case of an REO Acquisition with respect to
the GIC Office Mortgaged Properties, during the related GIC Office
Collection Period), the loan number of such Trust Mortgage Loan and the
Stated Principal Balance of such Trust Mortgage Loan as of the related
Acquisition Date;
(xv) with respect to any REO Property as to which a Final
Recovery Determination was made during the related Collection Period (or,
in the case of a Final Recovery Determination with respect to any GIC
Office REO Property, during the related GIC Office Collection Period), (A)
the loan number of the related Trust Mortgage Loan, (B) a brief description
of the basis for the Final Recovery Determination, (C) the aggregate of all
Liquidation Proceeds and other amounts Received by the Trust with respect
to such REO Property during the related Collection Period (separately
identifying the portion thereof allocable to distributions on the
Certificates), (D) the aggregate amount of any Realized Loss and Additional
Trust Fund Expenses in respect of the related REO Trust Mortgage Loan in
connection with such Final Recovery Determination and (E), if available,
the Appraised Value of such REO Property as expressed in the most recent
appraisal thereof and the date of such appraisal;
(xvi) the Distributable Certificate Interest and Accrued
Certificate Interest in respect of each Class of Regular Interest
Certificates for such Distribution Date or the related Interest Accrual
Period, as applicable;
(xvii) any unpaid Distributable Certificate Interest in respect
of each Class of Regular Interest Certificates after giving effect to the
distributions made on such Distribution Date, and if the full amount of the
Principal Distribution Amount was not distributed on such Distribution
Date, the portion of the shortfall affecting each Class of Principal
Balance Certificates;
(xviii) the Pass-Through Rate for each Class of Regular Interest
Certificates for such Distribution Date;
(xix) the Principal Distribution Amount and the Adjusted
Principal Distribution Amount, respectively, for such Distribution Date,
separately identifying the respective components thereof (and, in the case
of any Principal Prepayment or other unscheduled collection of principal
Received by the Trust during the related Collection Period, the loan number
for the related Trust Mortgage Loan and the amount of such prepayment or
other collection of principal);
(xx) the aggregate of (A) all Realized Losses incurred during the
related Collection Period (or, in the case of the GIC Office Trust Mortgage
Loan or any GIC Office REO Trust Mortgage Loan during the related GIC
Office Collection Period) and, as of the related Determination Date, from
the Closing Date and (B) all Additional Trust Fund Expenses
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(with a description thereof) incurred during the related Collection Period
and, as of the related Determination Date, from the Closing Date;
(xxi) the aggregate of all Realized Losses and Additional Trust
Fund Expenses that remain unallocated immediately following such
Distribution Date;
(xxii) the Class Principal Balance of each Class of Principal
Balance Certificates and the Class Notional Amount of each Class of
Interest-Only Certificates, outstanding immediately before and immediately
after such Distribution Date, separately identifying any reduction therein
pursuant to Section 4.04 on such Distribution Date;
(xxiii) the Certificate Factor for each Class of Regular Interest
Certificates immediately following such Distribution Date;
(xxiv) the aggregate amount of any interest on Advances in
respect of the Mortgage Pool paid to the Master Servicer, the Trustee, any
Fiscal Agent or any other party hereto during the related Collection Period
in accordance with Section 3.11(g) and/or Section 4.03(d);
(xxv) (A) the loan number for each Required Appraisal Loan and
any related Appraisal Reduction Amount (including an itemized calculation
thereof) as of the related Determination Date (or, in the case of the GIC
Office Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, if applicable, as of the end of the GIC Office Collection
Period) and (B) the aggregate Appraisal Reduction Amount for all Required
Appraisal Loans as of the related Determination Date (or, in the case of
the GIC Office Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto, if applicable, as of the end of the GIC Office
Collection Period);
(xxvi) on a cumulative basis from the Cut-off Date, the number,
aggregate Stated Principal Balance immediately after such Distribution Date
(in the case of subclauses (A), (B) and (E)), aggregate Cut-off Date
Balance (in the case of subclauses (C) and (D)), weighted average extension
period (except in the case of subclause (B) and which shall be zero in the
case of subclause (C)), and weighted average anticipated extension period
(in the case of subclause (B)) of Trust Mortgage Loans (A) as to which the
maturity dates have been extended, (B) as to which the maturity dates are
in the process of being extended, (C) that have paid off and were never
extended, (D) as to which the maturity dates had previously been extended
and have paid off and (E) as to which the maturity dates had been
previously extended and are in the process of being further extended;
(xxvii) the original and then current credit support levels for
each Class of Regular Interest Certificates;
(xxviii) the original and then current ratings, if any, for each
Class of Regular Interest Certificates;
(xxix) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges Received by the Trust (A) during the related Collection
Period and (B) during the period from and including the Closing Date to and
including the related Determination Date;
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(xxx) (A) the aggregate amount of servicing compensation in
respect of the Mortgage Pool (separately identifying the amount of each
category of compensation) paid to the Master Servicer, the Special Servicer
and, if payable directly out of the Trust Fund without a reduction in the
servicing compensation otherwise payable to the Master Servicer or the
Special Servicer, to each Sub-Servicer, during the related Collection
Period, (B) the aggregate amount of servicing compensation in respect of
the GIC Office Trust Mortgage Loan or any successor REO Trust Mortgage Loan
with respect thereto (separately identifying the amount of each category of
compensation) paid to the GIC Office Master Servicer and the GIC Office
Special Servicer during the related GIC Office Collection Period, and (C)
such other information as the Trustee is required by the Code or other
applicable law to furnish to enable Certificateholders to prepare their tax
returns; and
(xxxi) the amounts, if any, actually distributed with respect to
each Class of Residual Interest Certificates on such Distribution Date.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (viii) through (xv), (xix),
(xx), (xxiv), (xxv), (xxvi), (xxix) and (xxx) above, insofar as the underlying
information is solely within the control of the Special Servicer or the Master
Servicer, the Trustee may, absent manifest error, conclusively rely on the
reports to be provided by the Special Servicer or the Master Servicer.
The Trustee shall forward electronically a copy of each Distribution
Date Statement to the Depository. The Trustee shall make available each month,
to Certificateholders, Certificate Owners, the Underwriters, the Rating
Agencies, the Controlling Class Representative, any party hereto, any Person
identified by any Certificateholder or Certificate Owner as a prospective
transferee or any designee of the Depositor, via the Trustee's internet website,
on a restricted basis, with the use of a password provided by the Trustee to
such Person upon request and, in the case of a Certificateholder, a Certificate
Owner or a prospective transferee of a Certificate or any interest therein, upon
receipt by the Trustee from such Person of a certification substantially in the
form of Exhibit L-1 or Exhibit L-2, as applicable, all Certificateholder Reports
and any additional files containing substantially similar information in an
alternative format and, with the consent or at the direction of the Depositor,
such other information regarding the Certificates and/or the Mortgage Pool as
the Trustee may have in its possession. The Trustee will make no representations
or warranties as to the accuracy or completeness of such documents and will
assume no responsibility therefor.
The Trustee's internet website shall initially be located at
xxx.xxxxxxx.xxx/xxxx or at such other address as shall be specified by the
Trustee from time to time in the Distribution Date Statement and in one or more
written notices delivered to the parties hereto, the Controlling Class
Representative (if any), the Certificateholders and the Rating Agencies. In
connection with providing access to the Trustee's internet website, the Trustee
may require the acceptance of a disclaimer. The Trustee shall not be liable for
the dissemination of information in accordance with this Agreement.
The Master Servicer may, but is not required to, make available each
month, to Certificateholders, Certificate Owners (that have been confirmed as
such by the Trustee), the Controlling Class Representative, the Underwriters,
the Rating Agencies or any party hereto, the
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Certificateholder Reports, on its internet website. The Master Servicer will
make no representations or warranties as to the accuracy or completeness of any
report not prepared by it and will assume no responsibility for any information
for which it is not the original source.
The Master Servicer's internet website shall initially be located at
"xxx.xxxxxxxxx.xxx" or at such other address as shall be specified by the Master
Servicer from time to time in one or more written notices delivered to the other
parties hereto, the Controlling Class Representative (if any), the
Certificateholders and the Rating Agencies. In connection with providing access
to the Master Servicer's internet website, the Master Servicer may require
registration, issuance and use of a password and username, execution of an
access agreement and acceptance of a disclaimer. The Master Servicer shall not
be liable for the dissemination of information to Certificateholders and
Certificate Owners in accordance with this Agreement. Access to the Master
Servicer's internet website shall be coordinated with the Trustee and shall be
with the use of a password provided by the Master Servicer, which, in the case
of a Certificateholder or a Certificate Owner, shall only be provided upon
receipt by the Master Servicer from such Person of a certification substantially
in the form of Exhibit L-1. Notwithstanding the foregoing, upon the Depositor's
notifying the Master Servicer that the Non-Registered Certificates have been
sold by the Underwriters to unaffiliated third parties, the Master Servicer may
make the Servicer Reports available on its internet website without a password,
provided that for so long as reports are required to be filed with the
Commission in respect of the Trust pursuant to Section 15(d) of the Exchange
Act, the subject reports shall have been previously filed with the Commission
(which shall be confirmed by the Master Servicer by request made to the
Trustee).
If the Master Servicer determines, in its reasonable judgment, that
information regarding the Trust Mortgage Loans and REO Properties (in addition
to the information otherwise required to be contained in the CMSA Investor
Reporting Package) should be disclosed to Certificateholders and Certificate
Owners, then (A) the Master Servicer shall so notify the Trustee, set forth such
information in an additional report, in a format reasonably acceptable to the
Trustee and the Master Servicer (the "Supplemental Report"), and deliver such
report to the Trustee upon preparation thereof or simultaneously with the
delivery of its reports described in Section 3.12(c); and (B) the Trustee shall
include the Supplemental Report in or as an attachment to the Distribution Date
Statement for the following Distribution Date and, to the extent required by
Section 8.15(a), shall file such Supplemental Report, together with such
Distribution Date Statement, on the related Current Report on Form 8-K and/or
the related Annual Report on Form 10-K, as applicable, in accordance with
Section 8.15(a).
During any period that reports are required to be filed with the
Commission with respect to the Trust pursuant to Section 15(d) of the Exchange
Act, each recipient of a Certificateholder Report, a CMSA NOI Adjustment
Worksheet or a CMSA Operating Statement Analysis Report shall be deemed to have
agreed to keep confidential the information therein until such statement or
report is filed with the Commission, and each Certificateholder Report, CMSA NOI
Adjustment Worksheet and CMSA Operating Statement Analysis Report shall bear a
legend to the effect that: "Until this statement/report is filed with the
Commission with respect to the Trust pursuant to Section 15(d) of the Securities
Exchange Act of 1934, as amended, the recipient hereof shall be deemed to keep
the information contained herein confidential and such information will not,
without the prior consent of the Master Servicer or the Trustee, be disclosed by
such recipient or by its officers, directors, partners, employees, agents or
representatives in any manner whatsoever, in whole or in part."
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Absent manifest error of which it has actual knowledge, none of the
Master Servicer, the Special Servicer or the Trustee shall be responsible for
the accuracy or completeness of any information supplied to it by a Mortgagor, a
Mortgage Loan Seller or third party that is included in any reports, statements,
materials or information prepared or provided by the Master Servicer, the
Special Servicer or the Trustee, as applicable, pursuant to this Agreement. None
of the Trustee, the Master Servicer or the Special Servicer shall have any
obligation to verify the accuracy or completeness of any information provided by
a Mortgagor, a Mortgage Loan Seller, a third party or each other.
Within a reasonable period of time after the end of each calendar
year, upon request, the Trustee shall send to each Person who at any time during
the calendar year was a Certificateholder of record, a report summarizing on an
annual basis (if appropriate) the items relating to distributions of interest
(including Prepayment Premiums, Yield Maintenance Charges and Additional
Interest) and principal to such Certificateholder during such calendar year (or
the applicable portion of such calendar year during which such Person was a
Certificateholder) set forth in the Distribution Date Statements and such other
information as may be required to enable such Certificateholder to prepare its
federal income tax returns. Such information shall include the amount of
original issue discount accrued on each Class of Certificates and information
regarding the expenses of the Trust Fund. Such requirement shall be deemed to be
satisfied to the extent such information is provided pursuant to applicable
requirements of the Code from time to time in force.
Upon receipt of notice from the Depositor that the Underwriters have
sold the Non-Registered Certificates to unaffiliated third parties, the Trustee
shall make available electronically or, if so requested, forward by hard copy,
on each Distribution Date, to (i) Trepp, LLC (at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 or such other address as Trepp, LLC may designate),
(ii) Intex Solutions, Inc. (at 000 X Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, or
such other address as Intex Solutions, Inc. may hereafter designate), (iii)
Charter Research Corporation (at Two Xxxxxx Street, 00xx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000-0000, or such other address as Charter Research Corporation
may hereafter designate), and (iv) any other similar third party information
provider designated by the Depositor, a copy of the reports made available to
the Holders of the Certificates on such Distribution Date as described above.
Upon written request of the Depositor or any Underwriter, without
payment of any fee, and upon written request of any Certificateholder or any
other Person, together with payment of a reasonable fee specified by the
Trustee, the Trustee shall provide any statements, reports and/or information
contemplated by this Section 4.02(a) electronically to such party (such
electronic distribution and such statements, reports, and/or information thereon
to bear such appropriate disclaimers and qualifications as the Depositor and the
Trustee shall determine in their reasonable discretion).
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book-Entry
Certificates, then the Trustee shall forward such statements, reports and/or
other written information to such Certificate Owner as provided above, upon the
request of such Certificate Owner made in writing to the Corporate Trust Office
(accompanied by current verification of such Certificate Owner's ownership
interest). Such portion of such information as may be agreed upon by the
Depositor and the Trustee shall be furnished
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to any such Person via overnight courier delivery or telecopy from the Trustee;
provided that the cost of such overnight courier delivery or telecopy shall be
an expense of the party requesting such information.
The Trustee shall only be obligated to deliver the statements, reports
and information contemplated by this Section 4.02(a) to the extent it receives,
in the format required by this Agreement, the necessary underlying information
from the Master Servicer or the Special Servicer, as applicable, and shall not
be liable for any failure to deliver any thereof on the prescribed due dates, to
the extent caused by failure to receive timely such underlying information.
Nothing herein shall obligate the Trustee, the Master Servicer or the Special
Servicer to violate any applicable law prohibiting disclosure of information
with respect to any Mortgagor and the failure of the Trustee, Master Servicer or
the Special Servicer to disseminate information for such reason shall not be a
breach hereof.
The information to be furnished by the Trustee to the
Certificateholders pursuant to this Section 4.02 shall not limit the Trustee in
furnishing any such information to other Persons to whom it determines such
disclosure to be appropriate and shall not limit the Trustee in furnishing to
Certificateholders or to any Person any other information with respect to the
Trust Mortgage Loans, the Mortgaged Properties or the Trust Fund as may be
provided to it by the Depositor, the Master Servicer or the Special Servicer or
gathered by it in any investigation or other manner from time to time (such
information, other than as described in this Section 4.02, is referred to herein
as "Additional Information") as it may reasonably deem necessary or appropriate
from time to time, provided that (A) the Trustee shall give the Depositor three
(3) Business Days' advance notice before doing so, (B) any such Additional
Information shall only be furnished with the consent or at the request of the
Depositor (except pursuant to clause (E) below), (C) the Trustee shall be
entitled to indicate the source of all information furnished by it, and the
Trustee may affix thereto any disclaimer it deems appropriate in its reasonable
discretion, (D) the Trustee shall notify Certificateholders of the availability
of any such information in any manner as it, in its sole discretion, may
determine, and (E) this provision shall not prevent the Trustee, whether with or
without the consent of the Depositor, from furnishing information with respect
to the Trust Fund and its administration thereof to any Person, if it reasonably
determines that the furnishing of such information is required by applicable
law. The Trustee shall forward to the Depositor any requests for Additional
Information which, for their fulfillment, require the consent of the Depositor.
Nothing herein shall be construed to impose upon the Trustee any obligation or
duty to furnish or distribute any Additional Information to any Person in any
instance.
(b) Not later than 1:00 p.m. (New York City time) on the second
Business Day prior to each Distribution Date, the Master Servicer shall furnish
to the Trustee, and upon request, to the Depositor, the Underwriters and the
Special Servicer, by electronic transmission (or in such other form to which the
Trustee or the Depositor, as the case may be, and the Master Servicer may
agree), an accurate and complete CMSA Loan Periodic Update File providing the
required information for the Trust Mortgage Loans and any REO Trust Mortgage
Loans as of the related Determination Date (or, in the case of the GIC Office
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, as of the end of the related GIC Office Collection Period).
In the performance of its obligations set forth in Section 4.06 and
its other duties hereunder, the Trustee may conclusively rely on the CMSA Loan
Periodic Update File provided to it by the Master Servicer, and the Trustee
shall not be responsible to recompute, recalculate or verify the information
provided to it by the Master Servicer. In the case of information to be
furnished by the Master Servicer to the Trustee pursuant to this Section
4.02(b), insofar as such information is solely
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within the control of the Special Servicer, the Master Servicer (if other than
the Special Servicer or an Affiliate thereof) shall have no obligation to
provide such information until it has received such information from the Special
Servicer, shall not be in default hereunder due to a delay in providing the CMSA
Loan Periodic Update File caused by the Special Servicer's failure to timely
provide any report required under this Agreement and may, absent actual
knowledge of an error therein, conclusively rely on the reports to be provided
by the Special Servicer. The Master Servicer may conclusively rely on any
information provided by the respective Mortgage Loan Sellers or any Mortgagor
with respect to the CMSA Loan Periodic Update File, CMSA Loan Setup File, CMSA
Property File and CMSA Financial File.
SECTION 4.03. P&I Advances With Respect to the Mortgage Pool.
(a) On or before 2:00 p.m., New York City time, on each Trust Master
Servicer Remittance Date, the Master Servicer shall, subject to Section 4.03(c)
below, satisfy its obligations to make any required P&I Advances with respect to
the related Distribution Date in respect of the Mortgage Pool, first, by
transferring to the Trustee for deposit in the Collection Account amounts then
held in the Pool Custodial Account for future distribution to Certificateholders
in subsequent months in discharge of such obligations, and second, by remitting
its own funds to the Trustee for deposit in the Collection Account in an amount
equal to the remaining portion of such required P&I Advances. Any amounts held
in the Pool Custodial Account for future distribution and so used to make P&I
Advances shall be appropriately reflected in the Master Servicer's records and
replaced by the Master Servicer by deposit in the Pool Custodial Account on or
before the next succeeding applicable Determination Date (to the extent not
previously replaced through the deposit of Late Collections of the delinquent
principal and interest in respect of which such P&I Advances were made). If, as
of 4:00 p.m., New York City time, on any Trust Master Servicer Remittance Date,
the Master Servicer shall not have made any P&I Advance required to be made on
such date pursuant to this Section 4.03(a) (and shall not have delivered to the
Trustee the requisite Officer's Certificate and any required supporting
documentation related to a determination of nonrecoverability of a P&I Advance),
then the Trustee shall provide notice of such failure to a Servicing Officer of
the Master Servicer by facsimile transmission sent to telecopy no. (913)
253-9001 (or such alternative number provided by the Master Servicer to the
Trustee in writing) and by telephone at telephone no. (000) 000-0000 (or such
alternative number provided by the Master Servicer to the Trustee in writing) as
soon as possible, but in any event before 5:00 p.m., New York City time, on such
Trust Master Servicer Remittance Date. If after such notice by facsimile, the
Trustee does not receive the full amount of such P&I Advances by 10:00 a.m., New
York City time, on the related Distribution Date, then the Trustee (or any
Fiscal Agent on its behalf) shall make the portion of such P&I Advances that was
required to be, but was not, made by the Master Servicer on such Trust Master
Servicer Remittance Date. If the Trustee fails to make any such P&I Advance on
the related Distribution Date, but any Fiscal Agent makes such P&I Advance on
such date, then the Trustee shall be deemed not to be in default hereunder.
No party hereto shall be required to make a P&I Advance with respect
to any Non-Trust Mortgage Loan or any successor REO Mortgage Loan with respect
thereto.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer, the Trustee or any Fiscal Agent, as the case may be, pursuant to this
Section 4.03 in respect of any Distribution Date shall, subject to Section
4.03(c) below, equal the aggregate of all Monthly Payments (other than Balloon
Payments) and any Assumed Monthly Payments, in each case net of related Master
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Servicing Fees and any related Workout Fees (and, in the case of the GIC Office
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, net of any related similar fees payable to third parties under and
allocable to the GIC Office Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto pursuant to the GIC Office Servicing
Agreement) due or deemed due, as the case may be, in respect of the Trust
Mortgage Loans (including Balloon Trust Mortgage Loans delinquent as to their
respective Balloon Payments) and any REO Trust Mortgage Loans in the Mortgage
Pool on their respective Due Dates during the calendar month in which the
subject Distribution Date occurs, in each case to the extent such amount was not
Received by the Trust (including as net income from any related REO Property) as
of the end of the related Collection Period; provided that if, in the case of
the GIC Office Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, it is determined by a GIC Office Servicer and reported to the
applicable parties hereunder that an Appraisal Reduction Amount exists with
respect thereto (or that an Appraisal Reduction Amount exists with respect to
the GIC Office Loan Group, and a portion of such Appraisal Reduction Amount is
allocable to the GIC Office Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto), then the interest portion of each P&I
Advance, if any, required to be made pursuant to this Section 4.03 in respect of
the GIC Office Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, as the case may be, during the period that such Appraisal
Reduction Amount continues to exist, shall be reduced to equal the product of
(i) the amount of the interest portion of the subject P&I Advance that would
otherwise be required to be made under this Section 4.03 in respect of the GIC
Office Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto, as the case may be, without regard to this proviso, multiplied by (ii)
a fraction, the numerator of which is equal to the Stated Principal Balance of
the GIC Office Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto, as the case may be, reduced (to not less than zero) by the
portion of any Appraisal Reduction Amount in respect of the GIC Office Loan
Group allocable to the GIC Office Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto, as the case may be, and the denominator of
which is equal to the then Stated Principal Balance of the GIC Office Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto, as
the case may be; and provided, further, that if it is determined that an
Appraisal Reduction Amount exists with respect to any Serviced Loan Combination
and, further, that a portion of such Appraisal Reduction Amount is allocable to
the Trust Mortgage Loan or REO Trust Mortgage Loan, as applicable, that is part
of such Serviced Loan Combination, then the interest portion of each P&I
Advance, if any, required to be made pursuant to this Section 4.03 with respect
to such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be,
during the period that such Appraisal Reduction Amount continues to exist, shall
be reduced to equal the product of (i) the amount of the interest portion of the
subject P&I Advance that would otherwise be required to be made under this
Section 4.03 in respect of such Trust Mortgage Loan or REO Trust Mortgage Loan,
as the case may be, without regard to this proviso, multiplied by (ii) a
fraction, the numerator of which is equal to the then Stated Principal Balance
of such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be,
reduced (to not less than zero) by the portion of such Appraisal Reduction
Amount that is allocable to such Trust Mortgage Loan or REO Trust Mortgage Loan,
as the case may be, and the denominator of which is equal to the then Stated
Principal Balance of such Trust Mortgage Loan or REO Trust Mortgage Loan, as the
case may be; and provided, further, that if it is determined that an Appraisal
Reduction Amount exists with respect to any Trust Mortgage Loan or REO Trust
Mortgage Loan that is not part of a Loan Combination, then the interest portion
of each P&I Advance, if any, required to be made pursuant to this Section 4.03
with respect to such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case
may be, during the period that such Appraisal Reduction Amount continues to
exist, shall be reduced to equal the product of (i) the amount of the interest
portion of the
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subject P&I Advance that would otherwise be required to be made under this
Section 4.03 in respect of such Trust Mortgage Loan or REO Trust Mortgage Loan,
as the case may be, without regard to this proviso, multiplied by (ii) a
fraction, the numerator of which is equal to the then Stated Principal Balance
of such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be,
reduced (to not less than zero) by such Appraisal Reduction Amount, and the
denominator of which is equal to the then Stated Principal Balance of such Trust
Mortgage Loan or REO Trust Mortgage Loan, as the case may be. The existence of
an Appraisal Reduction Amount with respect to, or that is allocable to, any
Trust Mortgage Loan or REO Trust Mortgage Loan shall not affect the principal
portion of any required P&I Advance with respect thereto.
For purposes of determining the amount of P&I Advances to be made with
respect to any Distribution Date, if an Appraisal Reduction Amount exists with
respect to the 000 Xxxxx Xxxxxx Loan Pair, then it shall be allocated to the two
000 Xxxxx Xxxxxx Mortgage Loans (or any successor REO Mortgage Loans with
respect thereto), on a pro rata basis in accordance with the respective then
unpaid principal balances of such two Mortgage Loans (or any successor REO
Mortgage Loans with respect thereto). Further, for purposes of determining the
amount of P&I Advances to be made with respect to any Distribution Date, if an
Appraisal Reduction Amount exists with respect to the Somerset Collection Loan
Group, then it shall be allocated: first, to the Somerset Collection Subordinate
Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto), up to the amount of the then unpaid principal balance of such
Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto), together with all accrued and unpaid interest thereon (exclusive of
any portion of such interest that constitutes Default Interest) to but not
including the most recent prior Due Date; and second, to the two Somerset
Collection Pari Passu Mortgage Loans (or any successor REO Mortgage Loans with
respect thereto), on a pro rata basis in accordance with the respective then
unpaid principal balances of such two Mortgage Loans (or any successor REO
Mortgage Loans with respect thereto). In addition, for purposes of determining
the amount of P&I Advances to be made with respect to any Distribution Date, if
an Appraisal Reduction Amount exists with respect to the Xxxxxxxx Place Loan
Pair, then it shall be allocated: first, to the Xxxxxxxx Place Non-Trust
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto), up to
the amount of the then unpaid principal balance of such Non-Trust Mortgage Loan
(or any successor REO Mortgage Loan with respect thereto), together with all
accrued and unpaid interest thereon (exclusive of any portion of such interest
that constitutes Default Interest) to but not including the most recent prior
Due Date; and second, to the Xxxxxxxx Place Trust Mortgage Loan (or any
successor REO Trust Mortgage Loan with respect thereto). Moreover, for purposes
of determining the amount of P&I Advances to be made with respect to any
Distribution Date, if an Appraisal Reduction Amount exists with respect to the
Cumberland Place Loan Pair, then it shall be allocated: first, to the Cumberland
Place Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto), up to the amount of the then unpaid principal balance of such
Non-Trust Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto), together with all accrued and unpaid interest thereon (exclusive of
any portion of such interest that constitutes Default Interest) to but not
including the most recent prior Due Date; and second, to the Cumberland Place
Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with respect
thereto).
If the Master Servicer, the Trustee or any Fiscal Agent makes a P&I
Advance with respect to the GIC Office Trust Mortgage Loan or any successor REO
Trust Mortgage Loan, then it shall promptly so notify the GIC Office Master
Servicer of each such P&I Advance so made thereby and shall seek reimbursement
for such P&I Advance (together with interest thereon) out of amounts otherwise
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payable with respect to the GIC Office Loan Group, to the maximum extent
permitted by, and out of amounts specified for such purpose under, the GIC
Office Co-Lender Agreement.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made under this Section 4.03 if such P&I Advance would,
if made, constitute a Nonrecoverable P&I Advance. The Trustee and any Fiscal
Agent shall be entitled to rely, conclusively, on any determination by the
Master Servicer that a P&I Advance, if made pursuant to this Section 4.03, would
be a Nonrecoverable P&I Advance; provided, however, that if the Master Servicer
has failed to make a P&I Advance pursuant to this Section 4.03 for reasons other
than a determination by the Master Servicer that such P&I Advance would be a
Nonrecoverable P&I Advance or for the reasons contemplated by the following
paragraphs of this Section 4.03(c), the Trustee or any Fiscal Agent shall make
such Advance within the time periods required by Section 4.03(a) unless the
Trustee or such Fiscal Agent, in its good faith, reasonable discretion, makes a
determination prior to the times specified in Section 4.03(a) that such P&I
Advance would be a Nonrecoverable P&I Advance. Upon determining that any P&I
Advance previously made or proposed to be made pursuant to this Section 4.03
with respect to a Performing Serviced Trust Mortgage Loan (with the consent of
the Controlling Class Representative), a Specially Serviced Trust Mortgage Loan
or any successor REO Trust Mortgage Loan with respect thereto is or would, if
made, constitute a Nonrecoverable P&I Advance, the Special Servicer shall report
its determination to the Master Servicer, the Trustee and any Fiscal Agent. The
Master Servicer, the Trustee and any Fiscal Agent shall be entitled to
conclusively rely on any determination by the Special Servicer that a P&I
Advance made or proposed to be made pursuant to this Section 4.03 would be a
Nonrecoverable P&I Advance. Any determination by the Master Servicer or the
Special Servicer that the Master Servicer has made a Nonrecoverable P&I Advance
pursuant to this Section 4.03, or that any proposed P&I Advance, if made
pursuant to this Section 4.03, would constitute a Nonrecoverable P&I Advance,
shall be evidenced by an Officer's Certificate delivered to the Trustee, any
Fiscal Agent and the Depositor on or before the related Master Servicer
Remittance Date, setting forth the basis for such determination, together with
any other information that supports such determination, including an appraisal
(which appraisal shall have been conducted by an Independent Appraiser within
the 12-month period preceding such determination in accordance with the
standards of the Appraisal Institute taking into account the factors specified
in Section 3.18) or, alternatively, in the case of the GIC Office Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto, shall either
have been conducted by an Independent Appraiser as provided above or received
from a GIC Office Servicer), related Mortgagor operating statements and
financial statements, budgets and rent rolls of the related Mortgaged Properties
(to the extent available and/or in the Master Servicer's or the Special
Servicer's possession), engineers' reports, environmental surveys and any
similar reports that the Master Servicer may have obtained consistent with the
Servicing Standard and at the expense of the Trust Fund, that support such
determination by the Master Servicer or the Special Servicer, as applicable.
If, in connection with the foregoing, it is necessary for the Master
Servicer to obtain an appraisal, the Master Servicer shall so notify the Special
Servicer and consult with the Special Servicer regarding such appraisal. In
addition, if in connection with a determination by the Master Servicer as to
whether a P&I Advance made or to be made with respect to the GIC Office Trust
Mortgage Loan constitutes or would, if made, constitute a Nonrecoverable P&I
Advance: (i) the Master Servicer reasonably believes, in accordance with the
Servicing Standard, that a P&I Advance with respect to the GIC Office Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto
constitutes or may, if made, constitute a Nonrecoverable P&I Advance, and (ii)
either (A) the Master
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Servicer has made a request for an appraisal with respect to the GIC Office
Mortgaged Properties from a GIC Office Servicer and has not obtained, (x) within
15 Business Days of such request, a response from the applicable GIC Office
Servicer indicating that an appraisal with respect to the GIC Office Mortgaged
Properties would be performed within 60 days of the date of such response or has
been performed within the prior 12-month period (or such shorter period as the
Master Servicer reasonably believes, in accordance with the Servicing Standard,
is necessary) preceding the date of such request, and (y) within 60 days of the
date of such response, a copy of an appraisal report with respect to the GIC
Office Mortgaged Properties, relating to an appraisal that has been performed
within the 12-month period (or such shorter period as the Master Servicer
reasonably believes, in accordance with the Servicing Standard, is necessary)
preceding the date of such request by the Master Servicer, that complies with
the requirements for such an appraisal under the terms of the GIC Office
Servicing Agreement or this Agreement, or (B) the Master Servicer has made a
request for an appraisal with respect to the GIC Office Mortgaged Properties
from a GIC Office Servicer and has been advised by the applicable GIC Office
Servicer that such an appraisal with respect to the GIC Office Mortgaged
Properties will not be performed within the time periods specified in clause
(ii)(A) above, then the Master Servicer may have an appraisal performed with
respect to the GIC Office Mortgaged Properties by an Independent Appraiser or
other expert in real estate matters, which appraisal shall take into account the
factors specified in Section 3.18, and the cost of which appraisal may be
withdrawn from general collections on deposit in the Pool Custodial Account.
If any of the Pari Passu Non-Trust Mortgage Loans is securitized as
part of a rated commercial mortgage securitization similar to the commercial
mortgage securitization contemplated by this Agreement, and if the Master
Servicer receives written notice that the primary party responsible for making
delinquency advances similar to P&I Advances hereunder with respect to such
other commercial mortgage securitization has determined, in accordance with the
requirements of the related securitization agreement, that any such delinquency
advance made or to be made with respect to such securitized Pari Passu Non-Trust
Mortgage Loan (or any successor REO Mortgage Loan or comparable deemed mortgage
loan with respect thereto) would not ultimately be recoverable out of
collections on such Pari Passu Non-Trust Mortgage Loan (or such REO Mortgage
Loan or comparable deemed mortgage loan), then the Master Servicer shall deliver
written notice to such effect to the Trustee, any Fiscal Agent and the
Depositor. In addition, it shall provide notice to the Trustee, any Fiscal Agent
and the Depositor if P&I Advances in respect of the related Trust Mortgage Loan
(or any successor REO Trust Mortgage Loan with respect thereto) are no longer
deemed Nonrecoverable P&I Advances by virtue of the proviso to the definition of
"Nonrecoverable P&I Advance".
In addition, if the Master Servicer has actual knowledge that any of
the Pari Passu Non-Trust Mortgage Loans is securitized as part of a rated
commercial mortgage securitization similar to the commercial mortgage
securitization contemplated by this Agreement, and if the Master Servicer
determines that any P&I Advance made or to be made with respect to the related
Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with respect
thereto) is or, if made, would be a Nonrecoverable P&I Advance, then the Master
Servicer shall, consistent with the related Co-Lender Agreement (if applicable),
notify its counterpart under each such other commercial mortgage securitization
within one (1) Business Day of such determination. It will, consistent with the
related Co-Lender Agreement (if applicable), also notify its counterpart under
each such other commercial mortgage securitization (within one (1) Business Day
of such determination) if it subsequently determines that P&I Advances made or
to be made with respect to the related Trust Mortgage Loan (or any successor REO
Trust Mortgage Loan with respect thereto) are no longer Nonrecoverable P&I
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Advances. Following a determination of nonrecoverability by the Master Servicer
in accordance with this paragraph or by another party responsible for making
delinquency advances similar to P&I Advances with respect to a securitized Pari
Passu Non-Trust Mortgage Loan (or any successor REO Mortgage Loan or comparable
deemed mortgage loan with respect thereto) in accordance with the preceding
paragraph, prior to the Master Servicer resuming P&I Advances with respect to
the related Trust Mortgage Loan (or any successor REO Trust Mortgage Loan with
respect thereto), the Master Servicer shall consult with its counterparts under
the securitizations of any such Pari Passu Non-Trust Mortgage Loans regarding
whether circumstances with respect to the subject mortgage loans have changed
such that a proposed future P&I Advance would not be a Nonrecoverable P&I
Advance.
(d) The Master Servicer, the Trustee and any Fiscal Agent shall each
be entitled to receive interest at the Reimbursement Rate in effect from time to
time, compounded annually, accrued on the amount of each P&I Advance made
thereby under this Section 4.03 (with its own funds) for so long as such P&I
Advance is outstanding; provided that if the grace period for the delinquent
Monthly Payment as to which a P&I Advance was made under this Section 4.03 has
not elapsed as of the time such P&I Advance was made, then the total interest so
accrued on such P&I Advance prior to the expiration of such grace period, shall
not exceed the amount of Default Charges, if any, Received by the Trust in
connection with the late payment of such delinquent Monthly Payment; and
provided, further, that, in no event shall interest so accrue on any P&I Advance
as to which the corresponding Late Collection was received by the Master
Servicer or a Sub-Servicer on its behalf as of the related Trust Master Servicer
Remittance Date. Interest so accrued on any P&I Advance made under this Section
4.03 shall be payable: (i) first, in accordance with Sections 3.05(a) and 3.26,
out of any Default Charges on deposit in the Pool Custodial Account that were
collected on or in respect of the particular Trust Mortgage Loan or REO Trust
Mortgage Loan as to which the P&I Advance relates (provided that such Default
Charges will only be applied to pay interest accrued on such P&I Advance through
the date that such Default Charges were received); and (ii) then, if and to the
extent that such Default Charges are insufficient to cover such interest, but
not before the related Advance is being reimbursed or has been reimbursed
pursuant to this Agreement, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account; provided that, in the case of P&I
Advances with respect to the GIC Office Trust Mortgage Loan or any successor REO
Trust Mortgage Loan with respect thereto, the Master Servicer shall, no less
often than monthly, notify the GIC Office Master Servicer of the interest
accruing on such P&I Advances in accordance with this Section 4.03(d) and, to
the maximum extent permitted by the GIC Office Co-Lender Agreement, prior to
paying such interest on such P&I Advances out of general collections in respect
of the Mortgage Pool on deposit in the Pool Custodial Account, shall seek
payment for such interest on such P&I Advances from the GIC Office Master
Servicer out of amounts otherwise payable with respect to the GIC Office Loan
Group, to the maximum extent permitted by, and out of amounts specified for such
purpose under, the GIC Office Co-Lender Agreement; and provided, further, that,
if such P&I Advance was made with respect to a Serviced Combination Trust
Mortgage Loan or any REO Trust Mortgage Loan with respect thereto, then such
interest on such P&I Advance shall first be payable out of amounts on deposit in
the related Serviced Loan Combination Custodial Account in accordance with
Section 3.05A, Section 3.05B, Section 3.05C or Section 3.05D, as applicable. The
Master Servicer shall, in accordance with Section 3.05(a), Section 3.05A,
Section 3.05B, Section 3.05C and/or Section 3.05D reimburse itself, the Trustee
or any Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby
under this Section 4.03 as soon as practicable after funds available for such
purpose are deposited in the applicable Custodial Account. Notwithstanding the
foregoing, upon a determination that a previously made P&I Advance is a
Nonrecoverable P&I Advance, instead of obtaining reimbursement out of general
collections on the
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Mortgage Pool immediately, any of the Master Servicer, the Trustee or any Fiscal
Agent, as applicable, may, in its sole discretion, elect to obtain reimbursement
for such Nonrecoverable P&I Advance over a period of time (not to exceed 12
months or such longer period of time as is approved in writing by the
Controlling Class Representative) and the unreimbursed portion of such P&I
Advance will accrue interest at the Reimbursement Rate in effect from time to
time. At any time after such a determination to obtain reimbursement over time
in accordance with the preceding sentence, the Master Servicer, the Trustee or
any Fiscal Agent, as applicable, may, in its sole discretion, decide to obtain
reimbursement immediately. The fact that a decision to recover such
Nonrecoverable P&I Advance over time, or not to do so, benefits some Classes of
Certificateholders to the detriment of other Classes shall not constitute a
violation of the Servicing Standard by the Master Servicer or a breach of any
fiduciary duty owed to the Certificateholders by the Trustee or any Fiscal
Agent, or a breach of any other contractual obligation owed to the
Certificateholders by any party to this Agreement.
SECTION 4.04. Allocations of Realized Losses and Additional Trust Fund
Expenses
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01 or 9.01, as
applicable, the Trustee shall determine the amount, if any, by which (i) the
then aggregate of the Class Principal Balances of all the Classes of Principal
Balance Certificates, exceeds (ii) the aggregate Stated Principal Balance of the
Mortgage Pool that will be outstanding immediately following such Distribution
Date. If such excess does exist, then the Class Principal Balances of the Class
T, Class S, Class Q, Class P, Class N, Class M, Class L, Class K, Class J, Class
H, Class G, Class F, Class E, Class D, Class C and Class B Certificates shall be
reduced sequentially, in that order, in each case, until such excess or the
related Class Principal Balance is reduced to zero (whichever occurs first). If,
after the foregoing reductions, the amount described in clause (i) of the second
preceding sentence still exceeds the amount described in clause (ii) of such
sentence, then the respective Class Principal Balances of all the outstanding
Classes of the Class A Certificates shall be reduced on a pro rata basis in
accordance with the relative sizes of such Class Principal Balances, until any
such remaining excess is reduced to zero. Any and all such reductions in the
Class Principal Balances of the respective Classes of the Principal Balance
Certificates pursuant to this Section 4.04(a) shall be deemed to constitute
allocations of Realized Losses and Additional Trust Fund Expenses.
(b) If the Class Principal Balance of any Class of Principal Balance
Certificates is reduced on any Distribution Date pursuant to Section 4.04(a),
then the Uncertificated Principal Balance of such Class' Corresponding REMIC II
Regular Interest (or, if applicable, the aggregate Uncertificated Principal
Balance of such Class' Corresponding REMIC II Regular Interests) shall be deemed
to have first been reduced by the exact same amount. If a Class of Principal
Balance Certificates has two or more Corresponding REMIC II Regular Interests,
then the respective Uncertificated Principal Balances of such Corresponding
REMIC II Regular Interests shall be reduced as contemplated by the preceding
sentence in the same sequential order that principal distributions are deemed
made on such Corresponding REMIC II Regular Interests pursuant to Section
4.01(j), such that no reduction shall be made in the Uncertificated Principal
Balance of any such Corresponding REMIC II Regular Interest pursuant to this
Section 4.04(b) until the Uncertificated Principal Balance of each other such
Corresponding REMIC II Regular Interest, if any, with an alphanumeric
designation that ends in a lower number, has been reduced to zero. Any and all
such reductions in the Uncertificated Principal Balances
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of the respective REMIC II Regular Interests shall be deemed to constitute
allocations of Realized Losses and Additional Trust Fund Expenses.
(c) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC I Regular Interests pursuant to Section 4.01(k),
the Uncertificated Principal Balance of each REMIC I Regular Interest (after
taking account of such deemed distributions) shall be reduced, if and to the
extent necessary, to equal the Stated Principal Balance of the related Trust
Mortgage Loan or REO Trust Mortgage Loan, as the case may be, that will be
outstanding immediately following such Distribution Date. Any and all such
reductions in the Uncertificated Principal Balances of the respective REMIC I
Regular Interests shall be deemed to constitute allocations of Realized Losses
and Additional Trust Fund Expenses.
SECTION 4.05. Various Reinstatement Amounts.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01 or 9.01, as
applicable, the Trustee shall determine the amount, if any, by which (i) the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date, exceeds (ii) the then aggregate of
the Class Principal Balances of all the Classes of Principal Balance
Certificates. If such an excess does exist, then the Trustee shall allocate the
Total Principal Reinstatement Amount, if any, for the subject Distribution Date
as follows until it is allocated in full: first, to all of the Classes of Class
A Certificates, up to, and on a pro rata basis in accordance with, the
respective Loss Reimbursement Amounts, if any, for such Classes of Class A
Certificates with respect to such Distribution Date (minus any amounts
reimbursed in respect of such respective Loss Reimbursement Amounts on the
subject Distribution Date pursuant to Section 4.01(a)); and then to the
remaining Classes of Principal Balance Certificates, sequentially in
alphabetical order based on the respective Class designations thereof, in each
case up to any Loss Reimbursement Amount for such Class of Principal Balance
Certificates with respect to such Distribution Date (minus any amount reimbursed
in respect of such Loss Reimbursement Amount on the subject Distribution Date
pursuant to Section 4.01(b)). Any portion of the Total Principal Reinstatement
Amount for any Distribution Date that is allocated to a particular Class of
Principal Balance Certificates shall be: (i) referred to herein as the "Class
Principal Reinstatement Amount" in respect of such Class of Principal Balance
Certificates for such Distribution Date; and (ii) added to the Class Principal
Balance of such Class of Principal Balance Certificates on such Distribution
Date. Notwithstanding anything to the contrary contained herein, the parties
hereby acknowledge that the reinstatement of all or any portion of the Class
Principal Balance of any Class of Principal Balance Certificates on any
Distribution Date shall be a result of the collection of Recovered Amounts
Received by the Trust during the related Collection Period and the addition of
such Recovered Amounts to the Principal Distribution Amount for purposes of
calculating the Adjusted Principal Distribution Amount for such Distribution
Date.
(b) In connection with the reinstatement of all or any portion of the
Class Principal Balance of any one or more Classes of Principal Balance
Certificates on any Distribution Date, pursuant to Section 4.05(a), the Trustee
shall calculate the amount of lost Distributable Certificate Interest that would
have accrued on the respective Classes of Regular Interest Certificates through
and including the end of the Interest Accrual Period for such Distribution Date
if no reduction to the Class Principal Balance of any Class of Principal Balance
Certificates, pursuant to Section 4.04(a), had resulted on a prior Distribution
Date from the reimbursement out of general collections of principal on the
Mortgage Pool of the particular Advances (with interest thereon) that relate to
the Recovered Amounts associated
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with such reinstatement of outstanding principal on the subject Distribution
Date. Once determined, such lost Distributable Certificate Interest in respect
of any particular Class of Regular Interest Certificates shall be reinstated and
become due and payable on future Distribution Dates as part of the unpaid
Distributable Certificate Interest for such Class of Regular Interest
Certificates from prior Distribution Dates. All such reinstated Distributable
Certificate Interest in respect of any particular Class of Regular Interest
Certificates shall be treated the same as any other unpaid Distributable
Certificate Interest in respect of such Class of Regular Interest Certificates.
(c) If the Class Principal Balance of any Class of Principal Balance
Certificates is increased on any Distribution Date pursuant to Section 4.05(a),
then the Uncertificated Principal Balance of such Class' Corresponding REMIC II
Regular Interest (or, if applicable, the aggregate Uncertificated Principal
Balance of such Class' Corresponding REMIC II Regular Interests) shall be deemed
to have first been increased by the exact same amount. In circumstances where
there are multiple Corresponding REMIC II Regular Interests with respect to a
Class of Principal Balance Certificates, the increases in the respective
Uncertificated Principal Balances of such Corresponding REMIC II Regular
Interests as contemplated by the prior sentence shall be made in the reverse
order that reductions are made to such Uncertificated Principal Balances
pursuant to Section 4.04(b), in each case up to the amount of the Loss
Reimbursement Amount with respect to the subject REMIC II Regular Interest for
such Distribution Date (minus any amount reimbursed in respect of such Loss
Reimbursement Amount on the subject Distribution Date pursuant to Section
4.01(j)).
(d) If any lost Distributable Certificate Interest is reinstated with
respect to any Class of Regular Interest Certificates on any Distribution Date
pursuant to Section 4.05(b), then a corresponding amount of Uncertificated
Distributable Interest shall be reinstated with respect to such Class'
Corresponding REMIC II Regular Interest(s) (or, in the case of the Class X-CL or
Class X-CP Certificates, insofar as such lost Distributable Certificate Interest
corresponds to a particular REMIC III Component of such Class, a corresponding
amount of Uncertificated Distributable Interest shall be reinstated with respect
to such REMIC III Component's Corresponding REMIC II Regular Interest). In
circumstances where there are multiple Corresponding REMIC II Regular Interests
with respect to a Class of Principal Balance Certificates, the reinstatement of
such lost Uncertificated Distributable Interest with respect to such
Corresponding REMIC II Regular Interests as contemplated by the prior sentence
shall be effected taking into account the respective portions of such lost
Uncertificated Distributable Interest attributable to such Corresponding REMIC
II Regular Interests. Once reinstated, such lost Uncertificated Distributable
Interest in respect of any particular REMIC II Regular Interest shall become due
and payable on future Distribution Dates as part of the unpaid Uncertificated
Distributable Interest for such REMIC II Regular Interest from prior
Distribution Dates. All such reinstated Uncertificated Distributable Interest in
respect of any particular REMIC II Regular Interest shall be treated the same as
any other unpaid Uncertificated Distributable Interest in respect of such REMIC
II Regular Interest.
SECTION 4.06. Calculations.
The Trustee shall, provided it receives the necessary information from
the Master Servicer and the Special Servicer, be responsible for performing all
calculations necessary in connection with the actual and deemed distributions
and allocations to be made pursuant to Section 4.01 and Article IX and the
allocations of Realized Losses and Additional Trust Fund Expenses to be made
pursuant to Section 4.04. The Trustee shall calculate the Available Distribution
Amount and the Subordinate
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Available Distribution Amount for each Distribution Date and shall allocate such
respective amounts among Certificateholders in accordance with this Agreement,
and the Trustee shall have no obligation to recompute, recalculate or verify any
information provided to it by the Special Servicer or Master Servicer. The
calculations by the Trustee of such amounts shall, in the absence of manifest
error, be presumptively deemed to be correct for all purposes hereunder.
SECTION 4.07. Use of Agents.
The Master Servicer, the Special Servicer or the Trustee may at its
own expense utilize agents or attorneys-in-fact in performing any of its
obligations under this Article IV (except the obligation to make P&I Advances),
but no such utilization shall relieve the Master Servicer, the Special Servicer
or the Trustee, as applicable, from any of such obligations, and the Master
Servicer, the Special Servicer or the Trustee, as applicable, shall remain
responsible for all acts and omissions of any such agent or attorney-in-fact.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits X-0, X-0, X-0, X-0, X-0 and A-6; provided that any
of the Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03, beneficial ownership interests in the
Regular Interest Certificates shall initially be held and transferred through
the book-entry facilities of the Depository. The Regular Interest Certificates
will be issuable only in denominations corresponding to initial Certificate
Principal Balances or initial Certificate Notional Amounts, as the case may be,
as of the Closing Date of $10,000 in the case of the Class A-1, Class A-2, Class
A-3, Class A-4, Class B, Class C, Class D, Class E and Class F Certificates,
$250,000 in the case of the Interest-Only Certificates, and $250,000 in the case
of the remaining Regular Interest Certificates, and in each such case in
integral multiples of $1 in excess thereof. The Class R-I, Class R-II, Class
R-III and Class V Certificates will be issuable in denominations representing
Percentage Interests in the related Class of not less than 10%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers or signatories of the
Certificate Registrar shall be entitled to all benefits under this Agreement,
subject to the following sentence, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, however, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The offices of the Trustee responsible for its duties as initial
Certificate Register shall be located, as of the Closing Date, at Xxxxx Xxxxxx
xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust
Services - LB-UBS Commercial Mortgage Trust 2004-C2. The Certificate Registrar
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may appoint, by a written instrument delivered to the Depositor, the Master
Servicer, the Special Servicer and (if the Trustee is not the Certificate
Registrar) the Trustee, any other bank or trust company to act as Certificate
Registrar under such conditions as the predecessor Certificate Registrar may
prescribe, provided that the predecessor Certificate Registrar shall not be
relieved of any of its duties or responsibilities hereunder by reason of such
appointment. If the Trustee resigns or is removed in accordance with the terms
hereof, the successor trustee shall immediately succeed to its duties as
Certificate Registrar. The Depositor, the Trustee (if it is no longer the
Certificate Registrar), the Master Servicer and the Special Servicer shall have
the right to inspect the Certificate Register or to obtain a copy thereof at all
reasonable times, and to rely conclusively upon a certificate of the Certificate
Registrar as to the information set forth in the Certificate Register.
If three or more Holders make written request to the Trustee, and such
request states that such Holders desire to communicate with other Holders with
respect to their rights under this Agreement or under the Certificates and is
accompanied by a copy of the communication which such Holders propose to
transmit, then the Trustee shall, within 30 days after the receipt of such
request, afford (or cause any other Certificate Registrar to afford) the
requesting Holders access during normal business hours to the most recent list
of Certificateholders held by the Certificate Registrar.
(b) No Transfer of any Non-Registered Certificate or interest therein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of any Definitive Non-Registered Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Non-Registered Certificates or a Transfer of
such Certificate by the Depositor, Xxxxxx Brothers or any of their respective
Affiliates or, in the case of a Global Certificate for any Class of Book-Entry
Non-Registered Certificates, a Transfer thereof to a successor Depository or to
the applicable Certificate Owner(s) in accordance with Section 5.03), then the
Certificate Registrar shall refuse to register such Transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such Transfer substantially in the form
attached hereto as Exhibit F-1 and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached hereto either as
Exhibit F-2A or as Exhibit F-2B; or (ii) an Opinion of Counsel satisfactory to
the Trustee to the effect that the prospective Transferee is an Institutional
Accredited Investor or a Qualified Institutional Buyer and such Transfer may be
made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Master
Servicer, the Special Servicer, the Tax Administrator, the Trustee, any Fiscal
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
Transfer from the Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
If a Transfer of any interest in the Rule 144A Global Certificate for
any Class of Book-Entry Non-Registered Certificates is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Book-Entry Non-Registered Certificates or a Transfer of any
interest therein by the Depositor, Xxxxxx Brothers or any of their respective
Affiliates), then the Certificate Owner desiring to effect such Transfer shall
be required to obtain either (i) a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached hereto as Exhibit F-
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2C, or (ii) an Opinion of Counsel to the effect that the prospective Transferee
is a Qualified Institutional Buyer and such Transfer may be made without
registration under the Securities Act. Except as provided in the following two
paragraphs, no interest in the Rule 144A Global Certificate for any Class of
Book-Entry Non-Registered Certificates shall be transferred to any Person who
takes delivery other than in the form of an interest in such Rule 144A Global
Certificate. If any Transferee of an interest in the Rule 144A Global
Certificate for any Class of Book-Entry Non-Registered Certificates does not, in
connection with the subject Transfer, deliver to the Transferor the Opinion of
Counsel or one of the certifications described in the preceding sentence, then
such Transferee shall be deemed to have represented and warranted that all the
certifications set forth in Exhibit F-2C hereto are, with respect to the subject
Transfer, true and correct. Further, as long as the Class T Certificates are
Book-Entry Certificates, any Certificate Owner desiring to effect a transfer of
a Class T Certificate or any interest therein may not sell or otherwise transfer
that Certificate or any interest therein unless it has provided the Depositor
with prior written notice of such transfer (together with a copy of the
certificate required pursuant to clause (i) above, executed by the proposed
transferee).
Notwithstanding the preceding paragraph, any interest in the Rule 144A
Global Certificate for a Class of Book-Entry Non-Registered Certificates may be
transferred (without delivery of any certificate or Opinion of Counsel described
in clauses (i) and (ii) of the first sentence of the preceding paragraph) by the
Depositor or any Affiliate of the Depositor to any Person who takes delivery in
the form of a beneficial interest in the Regulation S Global Certificate for
such Class of Certificates upon delivery to the Certificate Registrar of (x) a
certificate to the effect that the Certificate Owner desiring to effect such
Transfer is the Depositor or an Affiliate of the Depositor and (y) such written
orders and instructions as are required under the applicable procedures of the
Depository, Clearstream and Euroclear to direct the Trustee, as transfer agent
for the Depository, to approve the debit of the account of a Depository
Participant by a denomination of interests in such Rule 144A Global Certificate,
and approve the credit of the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, that is equal
to the denomination of beneficial interests in the subject Class of Book-Entry
Non-Registered Certificates to be transferred. Upon delivery to the Certificate
Registrar of such certification and orders and instructions, the Trustee,
subject to and in accordance with the applicable procedures of the Depository,
shall reduce the denomination of the Rule 144A Global Certificate in respect of
the subject Class of Book-Entry Non-Registered Certificates, and increase the
denomination of the Regulation S Global Certificate for such Class of
Certificates, by the denomination of the beneficial interest in such Class of
Certificates specified in such orders and instructions.
Also notwithstanding the foregoing, any interest in a Rule 144A Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Rule 144A Global Certificate upon delivery to the Certificate Registrar and
the Trustee of (i) such certifications and/or opinions as are contemplated by
the second paragraph of this Section 5.02(b) and (ii) such written orders and
instructions as are required under the applicable procedures of the Depository
to direct the Trustee to debit the account of a Depository Participant by the
denomination of the transferred interests in such Rule
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144A Global Certificate. Upon delivery to the Certificate Registrar of the
certifications and/or opinions contemplated by the second paragraph of this
Section 5.02(b), the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the subject Rule
144A Global Certificate by the denomination of the transferred interests in such
Rule 144A Global Certificate, and shall cause a Definitive Certificate of the
same Class as such Rule 144A Global Certificate, and in a denomination equal to
the reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with this Agreement to the
applicable Transferee.
Except as provided in the next paragraph, no beneficial interest in
the Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the Regulation S Release Date, the Certificate Owner desiring to
effect any such Transfer shall be required to obtain from such Certificate
Owner's prospective Transferee a written certification substantially in the form
set forth in Exhibit F-2D hereto certifying that such Transferee is not a United
States Securities Person. On or prior to the Regulation S Release Date,
beneficial interests in the Regulation S Global Certificate for each Class of
Book-Entry Non-Registered Certificates may be held only through Euroclear or
Clearstream. The Regulation S Global Certificate for each Class of Book-Entry
Non-Registered Certificates shall be deposited with the Trustee as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository.
Notwithstanding the preceding paragraph, after the Regulation S
Release Date, any interest in the Regulation S Global Certificate for a Class of
Book-Entry Non-Registered Certificates may be transferred by the Depositor or
any Affiliate of the Depositor to any Person who takes delivery in the form of a
beneficial interest in the Rule 144A Global Certificate for such Class of
Certificates upon delivery to the Certificate Registrar of (x) a certificate to
the effect that the Certificate Owner desiring to effect such Transfer is the
Depositor or an Affiliate of the Depositor and (y) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in such Regulation S
Global Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, that is equal to
the denomination of beneficial interests in the subject Class of Book-Entry
Non-Registered Certificates to be transferred. Upon delivery to the Certificate
Registrar of such certification and orders and instructions, the Trustee,
subject to and in accordance with the applicable procedures of the Depository,
shall reduce the denomination of the Regulation S Global Certificate in respect
of the subject Class of Book-Entry Non-Registered Certificates, and increase the
denomination of the Rule 144A Global Certificate for such Class of Certificates,
by the denomination of the beneficial interest in such Class of Certificates
specified in such orders and instructions.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the Transfer of any
Non-Registered Certificate or interest therein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of any Non-Registered Certificate or interest therein shall, and does
hereby agree to, indemnify the Depositor, the Underwriters, the Trustee, any
Fiscal Agent, the Master Servicer, the Special Servicer, the Tax Administrator
and the Certificate Registrar against any liability that may result if such
Transfer is not exempt from the registration and/or qualification requirements
of the Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
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(c) No Transfer of a Certificate or any interest therein shall be made
(i) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (ii) to any Person who is
directly or indirectly purchasing such Certificate or interest therein on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan, if the
purchase and holding of such Certificate or interest therein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Non-Registered Certificates or any Transfer of a Non-Registered Certificate or
any interest therein by the Depositor, Xxxxxx Brothers or any of their
respective Affiliates or, in the case of a Global Certificate for any Class of
Book-Entry Non-Registered Certificates, any Transfer thereof to a successor
Depository or to the applicable Certificate Owner(s) in accordance with Section
5.03, the Certificate Registrar shall refuse to register the Transfer of a
Definitive Non-Registered Certificate unless it has received from the
prospective Transferee, and any Certificate Owner transferring an interest in a
Global Certificate for any Class of Book-Entry Non-Registered Certificates shall
be required to obtain from its prospective Transferee, one of the following: (i)
a certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) alternatively, except in the case of a Residual Interest Certificate or a
Class V Certificate, a certification to the effect that the purchase and holding
of such Certificate or interest therein by such prospective Transferee is exempt
from the prohibited transaction provisions of Sections 406(a) and (b) and 407 of
ERISA and the excise taxes imposed on such prohibited transactions by Sections
4975(a) and (b) of the Code, by reason of Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) alternatively, but only in the case
of a Non-Registered Certificate that is an Investment Grade Certificate (other
than, if applicable, a Residual Interest Certificate or a Class V Certificate)
that is being acquired by or on behalf of a Plan in reliance on the Prohibited
Transaction Exemption, a certification to the effect that such Plan (X) is an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section 3(16)(B) of
ERISA) by the Trustee, the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, any Sub-Servicer, any Person responsible for
servicing the GIC Office Trust Mortgage Loan or any GIC Office REO Property, any
Exemption-Favored Party or any Mortgagor with respect to Trust Mortgage Loans
constituting more than 5% of the aggregate unamortized principal balance of all
the Trust Mortgage Loans determined as of the Closing Date, or by any Affiliate
of such Person, and (Z) agrees that it will obtain from each of its Transferees
that are Plans a written representation that such Transferee, if a Plan,
satisfied the requirements of the immediately preceding clauses (iii)(X) and
(iii)(Y), together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(iii)(X) and (iii)(Y); or (iv) alternatively, a certification of facts and an
Opinion of Counsel which otherwise establish to the reasonable satisfaction of
the Trustee or such Certificate Owner, as the case may be, that such Transfer
will not result in a violation of Section 406 or 407 of ERISA or Section 4975 of
the Code or result in the imposition of an excise tax under Section 4975 of the
Code. It is hereby acknowledged that the forms of certification attached hereto
as Exhibit G-1 (in the case of Definitive Non-Registered Certificates) and
Exhibit G-2 (in the case of ownership interests in Book-Entry Non-Registered
Certificates) are acceptable for purposes of the preceding sentence. If any
Transferee of a Certificate (including a Registered Certificate) or any interest
therein does not, in connection with the subject Transfer, deliver to the
Certificate Registrar (in the case of a Definitive Certificate) or the
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Transferor (in the case of ownership interests in a Book-Entry Certificate) any
certification and/or Opinion of Counsel contemplated by the second preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that either: (i) such Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) the purchase and holding of
such Certificate or interest therein by such Transferee is exempt from the
prohibited transaction provisions of Sections 406(a) and (b) and 407 of ERISA
and the excise taxes imposed on such prohibited transactions by Sections 4975(a)
and (b) of the Code.
(d) (i) Each Person who has or who acquires any Ownership Interest in
a Residual Interest 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)(A) below to deliver payments to a Person other than such Person
and to have irrevocably authorized the Trustee under clause (ii)(B) below
to negotiate the terms of any mandatory disposition and to execute all
instruments of Transfer and to do all other things necessary in connection
with any such disposition. The rights of each Person acquiring any
Ownership Interest in a Residual Interest Certificate are expressly subject
to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Interest Certificate shall be a Permitted
Transferee and shall promptly notify the Tax Administrator
and the Trustee of any change or impending change in its
status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Interest Certificate, the Certificate
Registrar shall require delivery to it, and shall not
register the Transfer of any Residual Interest Certificate
until its receipt, of an affidavit and agreement
substantially in the form attached hereto as Exhibit H-1 (a
"Transfer Affidavit and Agreement"), from the proposed
Transferee, representing and warranting, among other things,
that such Transferee is a Permitted Transferee, that it is
not acquiring its Ownership Interest in the Residual
Interest Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any Person that
is not a Permitted Transferee, that for so long as it
retains its Ownership Interest in a Residual Interest
Certificate it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of this
Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above,
if a Responsible Officer of either the Trustee or the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in a Residual Interest Certificate to
such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Interest Certificate shall agree (1) to require a
Transfer Affidavit and
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Agreement from any prospective Transferee to whom such
Person attempts to Transfer its Ownership Interest in such
Residual Interest Certificate and (2) not to Transfer its
Ownership Interest in such Residual Interest Certificate
unless it provides to the Certificate Registrar a
certificate substantially in the form attached hereto as
Exhibit H-2 stating that, among other things, it has no
actual knowledge that such prospective Transferee is not a
Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Interest Certificate, by purchasing such Ownership
Interest, agrees to give the Tax Administrator and the
Trustee written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury regulations
section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Residual Interest Certificate, if it
is, or is holding an Ownership Interest in a Residual
Interest Certificate on behalf of, a "pass-through interest
holder".
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Interest Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such Residual Interest
Certificate that was in compliance with the provisions of this Section
5.02(d) shall be restored, to the extent permitted by law, to all rights as
Holder thereof retroactive to the date of registration of such Transfer of
such Residual Interest Certificate. None of the Depositor, the Trustee or
the Certificate Registrar shall be under any liability to any Person for
any registration of Transfer of a Residual Interest Certificate that is in
fact not permitted by this Section 5.02(d) or for making any payments due
on such Certificate to the Holder thereof or for taking any other action
with respect to such Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Residual
Interest Certificate in violation of the restrictions in this
Section 5.02(d), then, to the extent that retroactive restoration
of the rights of the preceding Holder of such Residual Interest
Certificate as described in clause (ii)(A) above shall be
invalid, illegal or unenforceable, the Trustee shall have the
right but not the obligation, to cause the Transfer of such
Residual Interest Certificate to a Permitted Transferee selected
by the Trustee on such terms as the Trustee may choose, and the
Trustee shall not be liable to any Person having an Ownership
Interest in such Residual Interest Certificate as a result of the
Trustee's exercise of such discretion. Such purported Transferee
shall promptly endorse and deliver such Residual Interest
Certificate in accordance with the instructions of the Trustee.
Such Permitted Transferee may be the Trustee itself or any
Affiliate of the Trustee.
(iii) The Tax Administrator shall make available to the IRS and
to those Persons specified by the REMIC Provisions all information
furnished to it by the other parties hereto necessary to compute any tax
imposed (A) as a result of the Transfer of an Ownership Interest in a
Residual Interest Certificate to any Person who is a Disqualified
Organization, including the information described in Treasury regulations
sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Interest Certificate and (B) as a
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result of any regulated investment company, real estate investment trust,
common trust fund, partnership, trust, estate or organization described in
Section 1381 of the Code that holds an Ownership Interest in a Residual
Interest Certificate having as among its record holders at any time any
Person which is a Disqualified Organization, and each of the other parties
hereto shall furnish to the Tax Administrator all information in its
possession necessary for the Tax Administrator to discharge such
obligation. The Person holding such Ownership Interest shall be responsible
for the reasonable compensation of the Tax Administrator for providing
information thereto pursuant to this subsection (d)(iii) and Section
10.01(h)(i).
(iv) The provisions of this Section 5.02(d) set forth prior to
this clause (iv) may be modified, added to or eliminated, provided that
there shall have been delivered to the Trustee and the Tax Administrator
the following:
(A) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause an Adverse Rating Event with
respect to any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to
the Trustee and the Tax Administrator, obtained at the
expense of the party seeking such modification of, addition
to or elimination of such provisions (but in no event at the
expense of the Trustee, the Tax Administrator or the Trust),
to the effect that doing so will not (1) cause any REMIC
Pool to cease to qualify as a REMIC or be subject to an
entity-level tax caused by the Transfer of any Residual
Interest Certificate to a Person which is not a Permitted
Transferee or (2) cause a Person other than the prospective
Transferee to be subject to a REMIC-related tax caused by
the Transfer of a Residual Interest Certificate to a Person
that is not a Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of an
interest in a Book-Entry Non-Registered Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that, and such
other evidence as may be reasonably required by the Trustee (or such Certificate
Owner) to confirm that, it has (i) sole investment discretion with respect to
each such account and (ii) full power to make the applicable foregoing
acknowledgments, representations, warranties, certifications and agreements with
respect to each such account as set forth in subsections (b), (c) and/or (d), as
appropriate, of this Section 5.02.
(f) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class evidencing a like aggregate Percentage Interest
in such Class.
(g) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class evidencing a
like aggregate Percentage Interest in such Class upon surrender of the
Certificates to be exchanged at the offices of the Certificate
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Registrar maintained for such purpose. Whenever any Certificates are so
surrendered for exchange, the Certificate Registrar shall execute and the
Authenticating Agent shall authenticate and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive.
(h) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(i) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Trustee or Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
(j) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
SECTION 5.03. Book-Entry Certificates.
(a) Each Class of Regular Interest Certificates shall initially be
issued as one or more Certificates registered in the name of the Depository or
its nominee and, except as provided in Section 5.03(c) and in the fifth
paragraph of Section 5.02(b), a Transfer of such Certificates may not be
registered by the Certificate Registrar unless such Transfer is to a successor
Depository that agrees to hold such Certificates for the respective Certificate
Owners with Ownership Interests therein. Such Certificate Owners shall hold and
Transfer their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depository and, except as provided in
Section 5.03(c) and in the fifth paragraph of Section 5.02(b), shall not be
entitled to definitive, fully registered Certificates ("Definitive
Certificates") in respect of such Ownership Interests. The Class X-CL, Class
X-CP, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P,
Class Q, Class S and Class T Certificates initially sold to Qualified
Institutional Buyers in reliance on Rule 144A or in reliance on another
exemption from the registration requirements of the Securities Act shall, in the
case of each such Class, be represented by the Rule 144A Global Certificate for
such Class, which shall be deposited with the Trustee as custodian for the
Depository and registered in the name of Cede & Co. as nominee of the
Depository. The Class X-CL, Class X-CP, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class P, Class Q, Class S and Class T Certificates
initially sold in offshore transactions in reliance on Regulation S shall, in
the case of each such Class, be represented by the Regulation S Global
Certificate for such Class, which shall be deposited with the Trustee as
custodian for the Depository and registered in the name of Cede & Co. as nominee
of the Depository. All Transfers by Certificate Owners of their respective
Ownership Interests in the Book-Entry Certificates shall be made in accordance
with the procedures established by the Depository Participant or brokerage firm
representing each such Certificate Owner. Each Depository Participant shall only
transfer the Ownership Interests in the Book-Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures. Each Certificate Owner is
deemed, by virtue of its acquisition of an Ownership Interest in the applicable
Class of Book-Entry Certificates, to agree to comply with the transfer
requirements provided for in Section 5.02.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry
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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 a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to a Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same.
Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates in respect of such Class to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar shall
be liable for any delay in delivery of such instructions, and each of them may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Registered Certificates, the registered holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) Notwithstanding any other provisions contained herein, neither the
Trustee nor the Certificate Registrar shall have any responsibility whatsoever
to monitor or restrict the Transfer of ownership interests in any Certificate
(including but not limited to any Non-Registered Certificate or any Subordinate
Certificate) which interests are transferable through the book-entry facilities
of the Depository.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be reasonably required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate
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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 applicable REMIC created
hereunder, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the Certificate
Registrar and any agent of any of them may treat the Person in whose name any
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 and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any agent of any of them shall be
affected by notice to the contrary.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02. Continued Qualification and Compliance of Master
Servicer; Merger, Consolidation or Conversion of
Depositor, Master Servicer or Special Servicer.
Subject to the following paragraph, the Depositor, the Master Servicer
and the Special Servicer shall each keep in full effect its existence, rights
and franchises as a legal entity under the laws of the jurisdiction of its
organization, and each will obtain and preserve its qualification to do business
as a foreign entity in, and will otherwise remain in compliance with the laws
of, each jurisdiction in which such qualification and compliance 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.
Each of the Depositor, the Master Servicer and the Special Servicer
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which, in the case of the Master Servicer or
the Special Servicer, may be limited to all or substantially all of its assets
related to commercial mortgage loan servicing) to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, the
Master Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business (which, in the case of the Master Servicer or the
Special Servicer, may be limited to the commercial mortgage loan servicing
business) of the Depositor, the Master Servicer or the Special Servicer, shall
be the successor of the Depositor, the Master Servicer or the Special Servicer,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of the Master Servicer or the Special
Servicer unless (i) as confirmed (at the expense of such successor or surviving
Person) in writing by each of the Rating Agencies (and, if applicable, Fitch),
such succession will not result in an Adverse Rating Event with respect to any
Class of Certificates or any class of Pari Passu Non-Trust Mortgage Loan
Securities rated by such Rating Agency (or, if applicable, Fitch), and (ii) such
successor or surviving Person makes the applicable representations and
warranties set forth in Section 3.23 (in the case of a successor or surviving
Person to the Master Servicer) or Section 3.24 (in the case of a successor or
surviving Person to the Special Servicer), as applicable. The successor or
surviving Person shall be responsible for the cost of obtaining the rating
confirmations contemplated by clause (i) of the proviso to the preceding
sentence.
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SECTION 6.03. Limitation on Liability of Depositor, Master Servicer
and Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any liability to the Trust Fund, the Trustee, the
Certificateholders or the Serviced Non-Trust Mortgage Loan Noteholders for any
action taken, or not taken, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision shall not protect the
Depositor, the Master Servicer or the Special Servicer against any liability to
the Trust Fund, the Trustee, the Certificateholders or the Serviced Non-Trust
Mortgage Loan Noteholders for the breach of a representation or warranty made
herein by such party, or against any expense or liability specifically required
to be borne by such party without right of reimbursement pursuant to the terms
hereof, or against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of its
obligations or duties hereunder or negligent disregard of such obligations or
duties. The Depositor, the Master Servicer, the Special Servicer and any
director, manager, member, officer, employee or agent of the Depositor, the
Master Servicer or the Special Servicer may rely in good faith on any document
of any kind which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Master Servicer,
the Special Servicer and any director, manager, member, officer, employee or
agent of the Depositor, the Master Servicer or the Special Servicer shall be
indemnified and held harmless by the Trust Fund out of the Pool Custodial
Account against any loss, liability or reasonable expense (including reasonable
legal fees and expenses) incurred in connection with any legal action or claim
relating to this Agreement or the Certificates (including in connection with the
dissemination of information and reports as contemplated by this Agreement),
other than any such loss, liability or expense: (i) specifically required to be
borne by the party seeking indemnification, without right of reimbursement
pursuant to the terms hereof; (ii) which constitutes a Servicing Advance that is
otherwise reimbursable hereunder; (iii) incurred in connection with any legal
action or claim against the party seeking indemnification, resulting from any
breach on the part of that party of a representation or warranty made herein; or
(iv) incurred in connection with any legal action or claim against the party
seeking indemnification, resulting from any willful misfeasance, bad faith or
negligence on the part of that party in the performance of its obligations or
duties hereunder or negligent disregard of such obligations or duties; provided
that if a Serviced Loan Combination is involved, such indemnity shall be payable
out of the related Loan Combination Custodial Account pursuant to Section 3.05A,
Section 3.05B, Section 3.05C or Section 3.05D, as applicable, and, if and to the
extent not solely attributable to one or more Serviced Non-Trust Mortgage Loans
(or any successor REO Mortgage Loan(s) with respect thereto), shall also be
payable out of the Pool Custodial Account if amounts on deposit in the related
Loan Combination Custodial Account(s) are insufficient therefor; and provided,
further, that in making a determination as to whether any such indemnity is
solely attributable to one or more Serviced Non-Trust Mortgage Loans (or any
successor REO Mortgage Loan(s) with respect thereto), the fact that any related
legal action was instituted by such Serviced Non-Trust Mortgage Loan Noteholder
shall not create a presumption that such indemnity is solely attributable
thereto. None of the Depositor, the Master Servicer or the Special Servicer
shall be under any obligation to appear in, prosecute or defend any legal
action, unless such action is related to its respective duties under this
Agreement and either (i) it is specifically required hereunder to bear the costs
of such action or (ii) such action will not, in its reasonable and good faith
judgment, involve it in any ultimate expense or liability for which it would not
be reimbursed hereunder. Notwithstanding the foregoing, the Depositor, the
Master Servicer or the Special Servicer may in its discretion undertake any such
action which it may deem necessary or desirable with respect to the enforcement
and/or protection of the rights and duties of the parties hereto and the
interests of the Certificateholders (or, if a Serviced Loan Combination is
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affected, the rights of the Certificateholders and the related Serviced
Non-Trust Mortgage Loan Noteholder(s) (as a collective whole)). In such event,
the legal expenses and costs of such action, and any liability resulting
therefrom, shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, the Master Servicer and the Special Servicer shall be entitled to be
reimbursed therefor from the Pool Custodial Account as provided in Section
3.05(a); provided, however, that if and to the extent a Serviced Loan
Combination and/or a Serviced Non-Trust Mortgage Loan Noteholder is involved,
such expenses, costs and liabilities shall be payable out of the related Loan
Combination Custodial Account pursuant to Section 3.05A, Section 3.05B, Section
3.05C or Section 3.05D, as applicable, and, if and to the extent attributable to
one or more Trust Mortgage Loans and/or REO Trust Mortgage Loans, shall also be
payable out of the Pool Custodial Account if amounts on deposit in the related
Loan Combination Custodial Account(s) are insufficient therefor. In no event
shall the Master Servicer or the Special Servicer be liable or responsible for
any action taken or omitted to be taken by the other of them (unless they are
the same Person or Affiliates) or for any action taken or omitted to be taken by
the Depositor, the Trustee, any Certificateholder or any Serviced Non-Trust
Mortgage Loan Noteholder (unless they are the same Person or Affiliates).
SECTION 6.04. Resignation of Master Servicer and the Special Servicer.
(a) The Master Servicer and, subject to Section 6.09, the Special
Servicer may each resign from the obligations and duties hereby imposed on it,
upon a determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 6.09 or Section 7.02 hereof. The Master Servicer and,
subject to the rights of the Controlling Class under Section 6.09 to appoint a
successor special servicer, the Special Servicer shall each have the right to
resign at any other time, provided that (i) a willing successor thereto
reasonably acceptable to the Depositor has been found (provided that if the
Depositor has not responded to a request for consent to a successor within 15
days, such successor shall be deemed approved thereby), (ii) each Rating Agency
(and, if applicable, Fitch) confirms in writing (at the expense of the resigning
party) that the resignation and the successor's appointment will not result in
an Adverse Rating Event with respect to any Class of Certificates or any class
of Pari Passu Non-Trust Mortgage Loan Securities rated by such Rating Agency
(or, if applicable, Fitch), (iii) the resigning party pays all costs and
expenses in connection with such resignation and the resulting transfer of
servicing, and (iv) the successor accepts appointment prior to the effectiveness
of such resignation and agrees in writing to be bound by the terms and
conditions of this Agreement. Neither the Master Servicer nor the Special
Servicer shall be permitted to resign except as contemplated above in this
Section 6.04(a).
(b) Consistent with Section 6.04(a), neither the Master Servicer nor
the Special Servicer shall, except as expressly provided herein, assign or
transfer any of its rights, benefits or
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privileges hereunder to any other Person or, except as provided in Sections
3.22, 4.06 and 7.01(c), delegate to or subcontract with, or authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by it hereunder. If, pursuant to any provision hereof, the duties of
the Master Servicer or the Special Servicer are transferred to a successor
thereto, the Master Servicing Fee (except as expressly contemplated by Section
3.11(a)), the Special Servicing Fee, any Workout Fee (except as expressly
contemplated by Section 3.11(c)) and/or any Liquidation Fee, as applicable, that
accrues or otherwise becomes payable pursuant hereto from and after the date of
such transfer shall be payable to such successor.
SECTION 6.05. Rights of Depositor, Trustee and Serviced Non-Trust
Mortgage Loan Noteholders in Respect of the Master
Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, each Underwriter, the Trustee and each Serviced Non-Trust Mortgage
Loan Noteholder, upon reasonable notice, during normal business hours access to
all records maintained thereby in respect of its rights and obligations
hereunder. Upon reasonable request, the Master Servicer and the Special Servicer
shall each furnish the Depositor, each Underwriter, the Trustee and each
Serviced Non-Trust Mortgage Loan Noteholder with its most recent publicly
available financial statements (or, if not available, the most recent publicly
available audited annual financial statements of its corporate parent, on a
consolidated basis) and such other non-proprietary information as the Master
Servicer or the Special Servicer, as the case may be, shall determine in its
sole and absolute discretion as it possesses, which is relevant to the
performance of its duties hereunder and which it is not prohibited by applicable
law or contract from disclosing. The Depositor may, but is not obligated to,
enforce the obligations of the Master Servicer and the Special Servicer
hereunder and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Master Servicer or Special Servicer
hereunder or exercise the rights of the Master Servicer and the Special Servicer
hereunder; provided, however, that neither the Master Servicer nor the Special
Servicer shall be relieved of any of its obligations hereunder by virtue of such
performance by the Depositor or its designee and, provided, further, that the
Depositor may not exercise any right pursuant to Section 7.01 to terminate the
Master Servicer or the Special Servicer as a party to this Agreement. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer or the Special Servicer and is not
obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall each
furnish such reports, certifications and information as are reasonably requested
by the Trustee in order to enable it to perform its duties hereunder.
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each furnish
such reports, certifications and information as are reasonably requested by the
Master Servicer in order to enable it to perform its duties hereunder.
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SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each furnish
such reports, certifications and information as are reasonably requested by the
Special Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09. Designation of Special Servicer and Controlling Class
Representative by the Controlling Class.
(a) The Majority Controlling Class Certificateholder(s) may at any
time and from time to time designate a Person to serve as Special Servicer
hereunder and to replace any existing Special Servicer or any Special Servicer
that has resigned or otherwise ceased to serve (including in connection with a
termination pursuant to Section 7.01) as Special Servicer. Such Holder or
Holders shall so designate a Person to serve as replacement Special Servicer by
the delivery to the Trustee, the Master Servicer, each Serviced Non-Trust
Mortgage Loan Noteholder and the existing Special Servicer of a written notice
stating such designation. The Trustee shall, promptly after receiving any such
notice, deliver to the Rating Agencies an executed Notice and Acknowledgment in
the form attached hereto as Exhibit I-1. If such Holders have not replaced the
Special Servicer within 30 days of such Special Servicer's resignation or the
date such Special Servicer has ceased to serve in such capacity, the Trustee
shall designate a successor Special Servicer, subject to removal by the
Controlling Class and appointment of a successor thereto pursuant to the terms
of this Section 6.09. Any designated Person (whether designated by Holders of
the Controlling Class or by the Trustee) shall become the Special Servicer on
the date as of which the Trustee shall have received all of the following: (1)
written confirmation from each Rating Agency (obtained at the expense of the
outgoing Special Servicer, in connection with a resignation or a termination for
cause, including pursuant to Section 7.01, and otherwise at the expense of the
Controlling Class Certificateholders contemplated by the next paragraph) that
the appointment of such Person will not result in an Adverse Rating Event with
respect to any Class of Certificates or any class of Pari Passu Non-Trust
Mortgage Loan Securities rated by such Rating Agency; (2) an Acknowledgment of
Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed
by the designated Person; and (3) an Opinion of Counsel (at the expense of the
Person designated to become the Special Servicer) to the effect that, upon the
execution and delivery of the Acknowledgment of Proposed Special Servicer, the
designated Person shall be bound by the terms of this Agreement and, subject to
customary limitations, that this Agreement shall be enforceable against the
designated Person in accordance with its terms. Any existing Special Servicer
shall be deemed to have resigned simultaneously with such designated Person's
becoming the Special Servicer hereunder; provided, however, that (i) the
outgoing Special Servicer shall continue to be entitled to receive all amounts
accrued or owing to it under this Agreement on or prior to the effective date of
such resignation, whether in respect of Servicing Advances or otherwise, (ii) if
the outgoing Special Servicer was terminated without cause, it shall be entitled
to a portion of certain Workout Fees thereafter payable with respect to the
Corrected Mortgage Loans (but only if and to the extent permitted by Section
3.11(c)) and (iii) the outgoing Special Servicer shall continue to be entitled
to the benefits of Section 6.03 notwithstanding any such resignation. The
outgoing Special Servicer shall cooperate with the Trustee and the replacement
Special Servicer in effecting the termination of the outgoing Special Servicer's
responsibilities and rights hereunder, including the transfer within two (2)
Business Days to the replacement Special Servicer for administration by it of
all cash amounts that shall at the time be or should have been credited by the
Special Servicer to a Custodial Account, a Servicing Account, a
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Reserve Account or an REO Account or should have been delivered to the Master
Servicer or that are thereafter received with respect to Specially Serviced
Mortgage Loans and Administered REO Properties. The Trustee shall notify the
other parties hereto, the Certificateholders and the Serviced Non-Trust Mortgage
Loan Noteholders of any termination of the Special Servicer and appointment of a
new Special Servicer in accordance with this Section 6.09.
Any out-of-pocket costs and expenses incurred in connection with the
removal (without cause) of a Special Servicer pursuant to this Section 6.09 and
its replacement by a Person designated by the Majority Controlling Class
Certificateholder(s), that are not paid by the replacement Special Servicer
shall be paid by such Holder or Holders. The rights of the Controlling Class
Certificateholders are subject to the consultation rights of the Somerset
Collection Non-Trust Mortgage Loan Noteholders set forth in Section 3.02 of the
Somerset Collection Co-Lender Agreement, and the 000 Xxxxx Xxxxxx Non-Trust
Mortgage Loan Noteholder set forth in Section 3.02 of the 000 Xxxxx Xxxxxx
Co-Lender Agreement, in each case regarding successor special servicers with
respect to the Somerset Collection Loan Group.
(b) The Majority Controlling Class Certificateholder(s) may also
select a representative (the "Controlling Class Representative") from whom the
Special Servicer will seek advice and approval and take direction under certain
circumstances, as described herein, and shall promptly notify the Trustee, the
Master Servicer and the Special Servicer of that selection. Notwithstanding the
foregoing, until a Controlling Class Representative is so selected in accordance
with the preceding sentence, or after receipt of a notice from the Majority
Controlling Class Certificateholder(s) that a Controlling Class Representative
is no longer designated, the Certificateholder, if any, that beneficially owns
more than 50% of the aggregate principal balance of the Controlling Class
Certificates will be deemed to be the Controlling Class Representative. The
Controlling Class Representative shall be required to keep all non-public
information received by it in such capacity pursuant to this Agreement
confidential and, upon its designation as such, the Controlling Class
Representative (except with respect to the initial Controlling Class
Representative as provided in the following sentence) shall deliver to the
Trustee, the Master Servicer and the Special Servicer a written confirmation to
such effect, in the form of Exhibit O attached hereto. Upon its acquisition of
all the Class T Certificates, Anthracite Capital, Inc. shall be the initial
Controlling Class Representative, and by its acceptance of such designation,
shall be deemed to have agreed to keep all non-public information received by it
in such capacity from time to time pursuant to this Agreement confidential,
subject to applicable law.
(c) Notwithstanding the foregoing, if the Certificates of the
Controlling Class consist of Book-Entry Certificates, then the rights of the
Holders of the Certificates of the Controlling Class set forth above in this
Section 6.09 may be exercised directly by the relevant Certificate Owner(s),
provided that the identity of such Certificate Owner(s) has been confirmed to
the Trustee to its reasonable satisfaction. If the Certificates of the
Controlling Class consist of Book-Entry Certificates, then any costs or expenses
incurred in connection with determining the identity of the Controlling Class
Representative shall be paid by the Trust or, if paid by the Trustee, reimbursed
to the Trustee out of the Trust Fund (in any event, out of amounts otherwise
payable with respect to the Controlling Class of Certificates).
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SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer, the Special Servicer or any Affiliate of either
of them may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not the Master Servicer or the Special Servicer or an Affiliate thereof.
If, at any time during which the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer is the Holder of (or,
in the case of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate, the Master Servicer or the Special Servicer proposes to take action
(including for this purpose, omitting to take action) that is not expressly
prohibited by the terms hereof and would not, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, violate the Servicing
Standard, but that, if taken, might nonetheless, in the Master Servicer's or the
Special Servicer's good faith judgment, be considered by other Persons to
violate the Servicing Standard, then the Master Servicer or the Special Servicer
may (but need not) seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (a) states that it is delivered
pursuant to this Section 6.10, (b) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or an Affiliate
thereof or the Special Servicer or an Affiliate thereof, as appropriate, and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate),
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates, as appropriate) shall have failed to object
in writing (with a copy to the related Serviced Non-Trust Mortgage Loan
Noteholder(s), if a Serviced Loan Combination is involved) to the proposal
described in the written notice, and if the Master Servicer or the Special
Servicer shall act as proposed in the written notice within 30 days, such action
shall be deemed to comply with, but not modify, the Servicing Standard. The
Trustee shall be entitled to reimbursement from the Master Servicer or the
Special Servicer, as applicable, for the reasonable expenses of the Trustee
incurred pursuant to this paragraph. It is not the intent of the foregoing
provision that the Master Servicer or the Special Servicer be permitted to
invoke the procedure set forth herein with respect to routine servicing matters
arising hereunder, but rather only in the case of unusual circumstances.
SECTION 6.11. Certain Powers of the Controlling Class Representative.
(a) Subject to Section 6.11(b), the Controlling Class Representative
will be entitled to advise the Master Servicer (in the event the Master Servicer
is authorized under this Agreement to take the subject action) or the Special
Servicer (in the event the Special Servicer is authorized under this Agreement
to take the subject action) with respect to any and all Specially Designated
Servicing Actions of such servicer with respect to the Serviced Mortgage Loans
and any Administered REO Properties; and, further subject to Section 6.11(b),
neither the Special Servicer nor the Master Servicer, as applicable, will be
permitted to take any Specially Designated Servicing Action with respect to any
Serviced Mortgage Loan or Administered REO Property unless and until it has
notified the Controlling Class Representative in writing and the Controlling
Class Representative has not objected in writing within ten (10) Business Days
of having been notified thereof and having been provided with all information
that the Controlling Class Representative has reasonably requested with respect
thereto
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promptly following its receipt of the subject notice (it being understood and
agreed that if such written objection has not been received by the Special
Servicer or the Master Servicer, as applicable, within such ten (10) Business
Day period, then the Controlling Class Representative will be deemed to have
approved the taking of the subject action); provided that, in the event that the
Special Servicer or the Master Servicer, as applicable, determines that failure
to take such action would violate the Servicing Standard, then the Special
Servicer and the Master Servicer, as applicable, may take any such action (other
than an action contemplated by clause (ix) of the definition of "Specially
Designated Servicing Action") without waiting for the Controlling Class
Representative's response; and provided, further, that the foregoing rights of
the Controlling Class Representative shall not relate to any Serviced Mortgage
Loan that is part of, or any Administered REO Property that relates to, a
Serviced Loan Combination, regarding which the rights and powers of the
specified Persons set forth under Section 6.12, Section 6.13, Section 6.14 or
Section 6.15, as the case may be, are instead applicable.
In addition, subject to Section 6.11(b), the Controlling Class
Representative may direct the Special Servicer to take, or to refrain from
taking, any actions with respect to the servicing and/or administration of a
Specially Serviced Mortgage Loan or an Administered REO Property as the
Controlling Class Representative may deem advisable or as to which provision is
otherwise made herein; provided that the foregoing rights of the Controlling
Class Representative shall not relate to any Specially Serviced Mortgage Loan
that is part of, or any Administered REO Property that relates to, a Serviced
Loan Combination. Upon reasonable request, the Special Servicer shall provide
the Controlling Class Representative with any information in such servicer's
possession with respect to such matters, including its reasons for determining
to take a proposed action; provided that such information shall also be
provided, in a written format, to the Trustee, who shall make it available for
review pursuant to Section 8.14(b).
Each of the Master Servicer (with respect to Performing Serviced
Mortgage Loans) and the Special Servicer (with respect to Specially Serviced
Mortgage Loans), as applicable, shall notify the Controlling Class
Representative of any release or substitution of collateral for a Serviced
Mortgage Loan that is not part of a Loan Combination even if such release or
substitution is required by the terms of such Serviced Mortgage Loan.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Controlling Class Representative with
respect to any Serviced Mortgage Loan or Administered REO Property, as
contemplated by Section 6.11(a), may (and the Special Servicer and the Master
Servicer shall each ignore and act without regard to any such advice, direction
or objection that such servicer has determined, in its reasonable, good faith
judgment, would) require or cause such servicer to violate any provision of this
Agreement (exclusive of Section 6.11(a)) (including such servicer's obligation
to act in accordance with the Servicing Standard), the related loan documents
(including any applicable co-lender and/or intercreditor agreements) or
applicable law (including the REMIC Provisions). Furthermore, the Special
Servicer shall not be obligated to seek approval from the Controlling Class
Representative, pursuant to Section 6.11(a) for any actions to be taken by the
Special Servicer with respect to the workout or liquidation of any particular
Specially Serviced Mortgage Loan if:
(i) the Special Servicer has, as provided in Section 6.11(a),
notified the Controlling Class Representative in writing of various actions
that the Special Servicer proposes to take with respect to the workout or
liquidation of such Specially Serviced Mortgage Loan; and
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(ii) for 60 days following the first such notice, the Controlling
Class Representative has objected to all of those proposed actions and has
failed to suggest any alternative actions that the Special Servicer
considers to be consistent with the Servicing Standard.
Also notwithstanding anything herein to the contrary, the provisions
of Section 6.11(a), and the rights and powers of the Controlling Class
Representative provided for in Section 6.11(a), shall not apply to any Serviced
Loan Combination or any related Administered REO Property; provided that this
paragraph is not intended to limit any rights or powers that the Controlling
Class Representative may have under Section 6.12, Section 6.13, Section 6.14 or
Section 6.15, as applicable.
(c) Promptly following the initial appointment of a Controlling Class
Representative and any subsequent appointment of a successor Controlling Class
Representative, the Trustee shall inform the GIC Office Master Servicer, the GIC
Office Special Servicer and the GIC Office Non-Trust Mortgage Loan Noteholder
that the Controlling Class Representative is entitled to exercise the rights and
powers of the Trustee, in its capacity as holder of the Mortgage Note for the
GIC Office Trust Mortgage Loan under Section 3.02 of the GIC Office Co-Lender
Agreement. The Controlling Class Representative shall be subject to the same
limitations, constraints and restrictions in exercising such rights and powers
as would be applicable to the Trustee, in its capacity as holder of the Mortgage
Note for the GIC Office Trust Mortgage Loan. In addition, subject to Section
7.01(d) and each other section hereof that specifically addresses a particular
matter with respect to the GIC Office Trust Mortgage Loan, if the Trustee is
requested to take any action in its capacity as holder of the Mortgage Note for
the GIC Office Trust Mortgage Loan, pursuant to the GIC Office Co-Lender
Agreement and/or the GIC Office Servicing Agreement, the Trustee will notify (in
writing), and act in accordance with the instructions of, the Controlling Class
Representative; provided that, if such instructions are not provided within the
prescribed time period, then the Trustee, subject to Sections 8.01 and 8.02,
shall take such action or inaction as it deems to be in the best interests of
the Certificateholders (as a collective whole) and shall have all rights and
powers incident thereto; and provided, further, that the Trustee (i) shall not
be required to take any action that relates to directing or approving any
servicing related action under the GIC Office Servicing Agreement or the GIC
Office Co-Lender Agreement, to the extent that the Controlling Class
Representative has been notified thereof and has failed to provide instructions
with respect to such action within the prescribed time period, and (ii) shall
not take any action that is not permitted under applicable law or the terms of
the GIC Office Co-Lender Agreement or the GIC Office Servicing Agreement or any
action that is, in the good faith, reasonable discretion of the Trustee,
materially adverse to the interests of the Certificateholders (as a collective
whole).
(d) The Controlling Class Representative will have no liability to the
Certificateholders for any action taken, or for refraining from the taking of
any action, pursuant to this Agreement (whether pursuant to this Section 6.11 or
otherwise), or for errors in judgment; provided, however, that the Controlling
Class Representative will not be protected against any liability to any
Controlling Class Certificateholder 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 or duties. Each
Certificateholder acknowledges and agrees, by its acceptance of its
Certificates, that: (i) the Controlling Class Representative may, and is
permitted hereunder to, have special relationships and interests that conflict
with those of Holders of one or more Classes of Certificates; (ii) the
Controlling Class Representative may, and is permitted hereunder to, act solely
in the interests of the Holders of the Controlling Class; (iii) the Controlling
Class Representative does not have any duties or liability to the
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Holders of any Class of Certificates other than the Controlling Class; (iv) the
Controlling Class Representative may, and is permitted hereunder to, 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; (v) the
Controlling Class Representative shall not be deemed to have been negligent or
reckless, or to have acted in bad faith or engaged in willful misconduct, by
reason of its having acted solely in the interests of the Holders of the
Controlling Class; and (vi) the Controlling Class Representative shall have no
liability whatsoever for having acted solely in the interests of the Holders of
the Controlling Class, and no Certificateholder may take any action whatsoever
against the Controlling Class Representative, any Holder of the Controlling
Class or any director, officer, employee, agent or principal thereof for having
so acted.
SECTION 6.12. Certain Matters Regarding the 000 Xxxxx Xxxxxx Loan
Combination.
(a) Subject to Section 6.12(b), and further subject to Section 3.02 of
the 000 Xxxxx Xxxxxx Co-Lender Agreement, the Controlling Class Representative
will be entitled to advise the Special Servicer (in the event the Special
Servicer is authorized under this Agreement to take the subject action) or the
Master Servicer (in the event the Master Servicer is authorized under this
Agreement to take the subject action), as applicable, with respect to any and
all 000 Xxxxx Xxxxxx Specially Designated Servicing Actions with respect to the
000 Xxxxx Xxxxxx Loan Pair or any related REO Property; and, further subject to
Section 6.12(b) of this Agreement and Section 3.02 of the 000 Xxxxx Xxxxxx
Co-Lender Agreement, neither the Special Servicer nor the Master Servicer, as
applicable, will be permitted to take any of the 000 Xxxxx Xxxxxx Specially
Designated Servicing Actions with respect to the 000 Xxxxx Xxxxxx Loan Pair or
any related REO Property unless and until (i) it has notified the 000 Xxxxx
Xxxxxx Non-Trust Mortgage Loan Noteholder and the Controlling Class
Representative in writing and (ii) the Controlling Class Representative has not
objected in writing within ten (10) Business Days of having been notified
thereof and having been provided with all reasonably requested information with
respect thereto (it being understood and agreed that if no such written
objection to the subject action on the part of the Controlling Class
Representative has been received by the Special Servicer or the Master Servicer,
as applicable, within such ten (10) Business Day period, then the Controlling
Class Representative will be deemed to have approved of the subject action);
provided that, in the event that the Special Servicer or the Master Servicer, as
applicable, determines that immediate action is necessary to protect the
interests of the Certificateholders and the 000 Xxxxx Xxxxxx Non-Trust Mortgage
Loan Noteholder (as a collective whole), the Special Servicer or the Master
Servicer, as the case may be, may take any such action without waiting for the
Controlling Class Representative's response.
In addition, subject to Section 6.12(b), and Section 3.02 of the 000
Xxxxx Xxxxxx Co-Lender Agreement, the Controlling Class Representative may
direct the Special Servicer or the Master Servicer, as appropriate based on
their respective duties hereunder, to take, or to refrain from taking, such
actions with respect to the 000 Xxxxx Xxxxxx Loan Pair or any related REO
Property as the Controlling Class Representative may deem consistent with the
000 Xxxxx Xxxxxx Co-Lender Agreement or as to which provision is otherwise made
in the 000 Xxxxx Xxxxxx Co-Lender Agreement. Upon reasonable request, the
Special Servicer or the Master Servicer, as appropriate based on their
respective duties hereunder, shall, with respect to the 000 Xxxxx Xxxxxx Loan
Pair, provide the Controlling Class Representative with any information in such
servicer's possession with respect to such matters, including its reasons for
determining to take a proposed action; provided that such information shall also
be provided, in a written format, to the Trustee, who shall make it available
for review pursuant to
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Section 8.14(b). Promptly following the Special Servicer or the Master Servicer
receiving any direction from the Controlling Class Representative as
contemplated by this paragraph, such servicer shall notify the Trustee and the
000 Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholder.
The Controlling Class Representative is hereby designated as the
Person entitled to exercise the rights and powers of the Trustee, as holder of
the 000 Xxxxx Xxxxxx Trust Mortgage Loan (or any successor REO Trust Mortgage
Loan with respect thereto), under Section 3.02 of the 000 Xxxxx Xxxxxx Co-Lender
Agreement, subject to the same limitations, constraints and restrictions in
exercising such rights and powers as would be applicable to the Trustee, as
holder of the 000 Xxxxx Xxxxxx Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with respect thereto). The Trustee shall take such actions as are
necessary or appropriate to make such designation effective in accordance with
Section 3.02(d) of the 000 Xxxxx Xxxxxx Co-Lender Agreement, including upon any
change in identity of the Controlling Class Representative. It is hereby
acknowledged that the Controlling Class Representative's rights and powers under
the prior two paragraphs of this Section 6.12(a) are based on such designation.
Each of the Master Servicer (with respect to Performing Mortgage
Loans) and the Special Servicer (with respect to Specially Serviced Mortgage
Loans), as applicable, shall notify the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan
Noteholder and the Controlling Class Representative of any release or
substitution of collateral for the 000 Xxxxx Xxxxxx Loan Pair even if such
release or substitution is required by the terms of the 000 Xxxxx Xxxxxx Loan
Pair.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Controlling Class Representative, as
contemplated by Section 6.12(a), may (and the Special Servicer and the Master
Servicer shall each ignore and act without regard to any such advice, direction
or objection that the Special Servicer or the Master Servicer, as applicable,
has determined, in its reasonable, good faith judgment, would) require, cause or
permit such servicer to violate any provision of the 000 Xxxxx Xxxxxx Co-Lender
Agreement or this Agreement (exclusive of Section 6.12(a)) (including such
servicer's obligation to act in accordance with the Servicing Standard), the
related loan documents or applicable law or result in an Adverse REMIC Event or
an Adverse Grantor Trust Event. Furthermore, neither the Special Servicer nor
the Master Servicer shall be obligated to seek approval from the Controlling
Class Representative for any actions to be taken by such servicer with respect
to the 000 Xxxxx Xxxxxx Loan Pair or any related REO Property if: (i) such
servicer has, as provided in Section 6.12(a), notified the Controlling Class
Representative in writing of various actions that such servicer proposes to take
with respect to the workout or liquidation of the 000 Xxxxx Xxxxxx Loan Pair;
and (ii) for 60 days following the first such notice, the Controlling Class
Representative has objected to all of those proposed actions and has failed to
suggest any alternative actions that such servicer considers to be consistent
with the Servicing Standard.
Also notwithstanding the foregoing, each of the Master Servicer and
the Special Servicer, prior to such servicer's taking (or, in the case of the
Special Servicer, if and when appropriate under this Agreement, consenting to
the Master Servicer's taking) any of the 000 Xxxxx Xxxxxx Specially Designated
Servicing Actions, and the Special Servicer, prior to such servicer's taking any
action at the direction of the Controlling Class Representative pursuant to the
second paragraph of Section 6.12(a), shall in each such case notify the 000
Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholder. The 000 Xxxxx Xxxxxx Non-Trust
Mortgage Loan Noteholder shall, upon receipt of such notice, have ten (10)
Business Days to advise and consult with the Master Servicer or the Special
Servicer, as applicable, with
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respect to such actions; provided that the Master Servicer or the Special
Servicer, as applicable, shall not be obligated to take any advice from, or
follow any direction given by, the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan
Noteholder; and provided, further, that the 000 Xxxxx Xxxxxx Non-Trust Mortgage
Loan Noteholder's request to communicate with the Master Servicer or the Special
Servicer, as applicable, in accordance with this Section 6.12(b) must be made
within eight (8) Business Days of its receipt of notice in accordance with the
preceding sentence; and provided, further, that, in the event that the Master
Servicer or the Special Servicer, as applicable, determines that immediate
action is necessary to protect the interests of the Certificateholders and the
000 Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholder (as a collective whole),
such servicer may take (or, in the case of the Special Servicer, if and when
appropriate under this Agreement, may consent to the Master Servicer's taking)
the subject action without consulting with the 000 Xxxxx Xxxxxx Non-Trust
Mortgage Loan Noteholder in accordance with this Section 6.12(b). The Master
Servicer or the Special Servicer, as applicable, within two (2) Business Days of
receiving any request from the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan
Noteholder desiring to exercise its consultation rights under this Section
6.12(b), shall (subject to the three provisos to the immediately preceding
sentence): (i) make available to the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan
Noteholder, in person at the Primary Servicing Offices of such servicer or by
telephone conference, for a reasonable time period, one or more of such
servicer's officers responsible for the servicing and administration of the 000
Xxxxx Xxxxxx Loan Pair or any related REO Property; (ii) provide such requesting
000 Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholder such information regarding
the proposed action that is in such servicer's possession or easily obtainable
by it, including such servicer's reasons for determining to take or permit a
proposed action, as the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholder may
request; and (iii) communicate with the Controlling Class Representative
regarding any advice or other views expressed by the 000 Xxxxx Xxxxxx Non-Trust
Mortgage Loan Noteholder regarding the subject servicing actions. Nothing
contained in this paragraph shall, or is intended to, limit or alter the
Controlling Class Representative's rights under Section 6.12(a).
The 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholder may designate,
in writing, a representative to exercise its rights under the prior paragraph
(copies of such writing to be delivered to the Trustee, the Master Servicer and
the Special Servicer). Such designation shall remain in effect until it is
revoked by the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholder by a writing
delivered to the Trustee, the Master Servicer and the Special Servicer.
(c) The 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholder shall be
entitled to receive, upon request, a copy of any notice or report required to be
delivered (upon request or otherwise) to the Trustee with respect to the 000
Xxxxx Xxxxxx Loan Pair or any related REO Property by any other party hereto.
Subject to the 000 Xxxxx Xxxxxx Co-Lender Agreement, any such other party shall
be permitted to require payment of a sum sufficient to cover the reasonable
costs and expenses of providing such copies in accordance with this Section
6.12(c).
(d) The parties hereto further recognize such other rights of the 000
Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholders as are set forth in Section
3.02 of the 000 Xxxxx Xxxxxx Co-Lender Agreement and are not otherwise addressed
herein.
(e) Notwithstanding anything herein to the contrary, but subject to
the next sentence, if the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan or any
successor REO Mortgage Loan with respect thereto is included in a rated
commercial mortgage securitization, and if any particular servicing action with
respect to the 000 Xxxxx Xxxxxx Loan Pair or any related REO Property requires
confirmation of
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ratings of the Certificates in connection therewith under any provision of this
Agreement, then the Master Servicer or the Special Servicer, as applicable,
shall likewise obtain a similar confirmation of ratings from Xxxxx'x, S&P and/or
Fitch, as applicable, with respect to any rated class of 000 Xxxxx Xxxxxx
Non-Trust Mortgage Loan Securities (regardless of whether or not expressly
required under such provision of this Agreement). Also notwithstanding anything
to the contrary contained herein, any costs associated with confirmation of the
ratings of any rated 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan Securities
(whether pursuant to the prior sentence or otherwise pursuant to this Agreement
or the 000 Xxxxx Xxxxxx Co-Lender Agreement) shall, to the extent not
recoverable from the related Mortgagor or other party seeking to take the action
that requires such confirmation of ratings or another source besides the Trust,
shall be borne by the trust that holds the 000 Xxxxx Xxxxxx Non-Trust Mortgage
Loan or any successor REO Mortgage Loan with respect thereto, and if such trust
is unwilling to cover the cost of obtaining such confirmation of ratings, then
no party hereto shall be obligated to obtain such confirmation of ratings
(notwithstanding anything herein to the contrary).
(f) The parties hereto recognize and acknowledge the rights of the 000
Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholder under the 000 Xxxxx Xxxxxx
Co-Lender Agreement, including the right thereof to purchase the 000 Xxxxx
Xxxxxx Trust Mortgage Loan under the circumstances contemplated by Section 4.02
of the 000 Xxxxx Xxxxxx Co-Lender Agreement. In connection with the foregoing,
the Master Servicer (if the 000 Xxxxx Xxxxxx Trust Mortgage Loan is a Performing
Serviced Mortgage Loan) or the Special Servicer (if the 000 Xxxxx Xxxxxx Trust
Mortgage Loan is a Specially Serviced Mortgage Loan), as applicable, shall take
all actions required on the part of the holder of the 000 Xxxxx Xxxxxx Trust
Mortgage Loan or contemplated to be performed by a servicer, in any case under
Section 4.02 of the 000 Xxxxx Xxxxxx Co-Lender Agreement, including the delivery
of all necessary notices on a timely basis, as well as all other actions
necessary and appropriate to effect the transfer of the 000 Xxxxx Xxxxxx Trust
Mortgage Loan to the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan Noteholder or its
designee.
(g) The Master Servicer (if the 000 Xxxxx Xxxxxx Trust Mortgage Loan
is a Performing Serviced Mortgage Loan) or the Special Servicer (if the 000
Xxxxx Xxxxxx Trust Mortgage Loan is a Specially Serviced Mortgage Loan), as
applicable, shall take all actions relating to the servicing and/or
administration of, and the preparation and delivery of reports and other
information with respect to, the 000 Xxxxx Xxxxxx Loan Pair or any related REO
Property required to be performed by the holder of the 000 Xxxxx Xxxxxx Trust
Mortgage Loan or contemplated to be performed by a servicer, in any case
pursuant to the 000 Xxxxx Xxxxxx Co-Lender Agreement and/or any related
mezzanine loan intercreditor agreement.
(h) If there are any conflicts between this Section 6.12 and the 000
Xxxxx Xxxxxx Co-Lender Agreement, then the 000 Xxxxx Xxxxxx Co-Lender Agreement
shall control.
SECTION 6.13. Certain Matters Regarding the Somerset Collection Loan
Combination.
(a) Subject to Section 6.13(b), and further subject to Section
3.01(b), Section 3.01(c) and Section 3.02(b) of the Somerset Collection
Co-Lender Agreement, the Somerset Collection Controlling Party will be entitled
to advise the Special Servicer (in the event the Special Servicer is authorized
under this Agreement to take the subject action) or the Master Servicer (in the
event the Master Servicer is authorized under this Agreement to take the subject
action), as applicable, with
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respect to any and all Somerset Collection Specially Designated Servicing
Actions with respect to the Somerset Collection Loan Group or any related REO
Property; and, further subject to Section 6.13(b) of this Agreement and Section
3.02(b) of the Somerset Collection Co-Lender Agreement, neither the Special
Servicer nor the Master Servicer, as applicable, will be permitted to take any
of the Somerset Collection Specially Designated Servicing Actions with respect
to the Somerset Collection Loan Group or any related REO Property unless and
until (i) it has notified the Somerset Collection Non-Trust Mortgage Loan
Noteholders and the Controlling Class Representative in writing and (ii) the
Somerset Collection Controlling Party has not objected in writing within ten
(10) Business Days of the Somerset Collection Controlling Party having been
notified thereof and having been provided with all reasonably requested
information with respect thereto (it being understood and agreed that if no such
written objection to the subject action on the part of the Somerset Collection
Controlling Party has been received by the Special Servicer or the Master
Servicer, as applicable, within such ten (10) Business Day period, then the
Somerset Collection Controlling Party will be deemed to have approved of the
subject action); provided that, in the event that the Special Servicer or the
Master Servicer, as applicable, determines that immediate action is necessary to
protect the interests of the Certificateholders and the Somerset Collection
Non-Trust Mortgage Loan Noteholders (as a collective whole), the Special
Servicer or the Master Servicer, as the case may be, may take any such action
without waiting for the Somerset Collection Controlling Party's response; and
provided, further, that, under circumstances where the Controlling Class
Representative is not the Somerset Collection Controlling Party, nothing herein
shall be intended to limit the right of the Controlling Class Representative to
consult with the Special Servicer or the Master Servicer, as applicable,
regarding the Somerset Collection Trust Mortgage Loan, and during the ten (10)
Business Day period referred to above, the Special Servicer or the Master
Servicer, as applicable, shall consult with the Controlling Class Representative
regarding its views as to the proposed action (but may, in its sole discretion,
reject any advice, objection or direction from the Controlling Class
Representative) and, upon reasonable request, the Special Servicer or the Master
Servicer, as applicable, shall provide the Controlling Class Representative with
any information in such servicer's possession with respect to such matters,
including its reasons for determining to take a proposed action.
In addition, subject to Section 6.13(b), and further subject to
Section 3.01(b), 3.01(c) and Section 3.02(b) of the Somerset Collection
Co-Lender Agreement, the Somerset Collection Controlling Party may direct the
Special Servicer or the Master Servicer, as appropriate based on their
respective duties hereunder, to take, or to refrain from taking, such actions
with respect to the Somerset Collection Loan Group or any related REO Property
as the Somerset Collection Controlling Party may deem consistent with the
Somerset Collection Co-Lender Agreement or as to which provision is otherwise
made in the Somerset Collection Co-Lender Agreement. Upon reasonable request,
the Special Servicer or the Master Servicer, as appropriate based on their
respective duties hereunder, shall, with respect to the Somerset Collection Loan
Group, provide the Somerset Collection Controlling Party with any information in
such servicer's possession with respect to such matters, including its reasons
for determining to take a proposed action; provided that such information shall
also be provided, in a written format, to the Trustee, who shall make it
available for review pursuant to Section 8.14(b). Promptly following the Special
Servicer or the Master Servicer receiving any direction from the Somerset
Collection Controlling Party as contemplated by this paragraph, such servicer
shall notify the Trustee, the Controlling Class Representative (if it is not the
Somerset Collection Controlling Party) and each Somerset Collection Non-Trust
Mortgage Loan Noteholder (other than, if applicable, the Somerset Collection
Controlling Party).
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The Somerset Collection Controlling Party will also be entitled to
advise the Master Servicer and the Special Servicer with respect to any
determination to be made by the lender with respect to the definition of
"Permitted Investments" contained in the loan agreement for the Somerset
Collection Loan Group, to the extent such determination is within the lender's
discretion; provided that no such determination and consequent selection of any
investment pursuant thereto shall result in an Adverse Rating Event with respect
to any Class of Certificates or any class of Somerset Collection Pari Passu
Non-Trust Mortgage Loan Securities. Subject to Section 6.13(b), and further
subject to Section 3.02(b) of the Somerset Collection Co-Lender Agreement,
neither the Master Servicer nor the Special Servicer may take the foregoing
action unless and until (i) it has notified the Controlling Class Representative
and each Somerset Collection Controlling Party in writing and (ii) the Somerset
Collection Controlling Party has not objected in writing within ten (10)
Business Days of having been notified thereof and having been provided with all
reasonably requested information with respect thereto (it being understood and
agreed that if such written objection has not been received by the Master
Servicer or the Special Servicer, as applicable, within such ten (10) Business
Day period, then the Somerset Collection Controlling Party's approval will be
deemed to have been given).
Each of the Master Servicer (with respect to Performing Mortgage
Loans) and the Special Servicer (with respect to Specially Serviced Mortgage
Loans), as applicable, shall notify the Somerset Collection Non-Trust Mortgage
Loan Noteholders, the Controlling Class Representative and any other Person that
may be the Somerset Collection Controlling Party of any release or substitution
of collateral for the Somerset Collection Loan Group even if such release or
substitution is required by the terms of the Somerset Collection Loan Group.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Somerset Collection Controlling Party, as
contemplated by Section 6.13(a), may (and the Special Servicer and the Master
Servicer shall each ignore and act without regard to any such advice, direction
or objection that the Special Servicer or the Master Servicer, as applicable,
has determined, in its reasonable, good faith judgment, would) require, cause or
permit such servicer to violate any provision of the Somerset Collection
Co-Lender Agreement or this Agreement (exclusive of Section 6.13(a)) (including
such servicer's obligation to act in accordance with the Servicing Standard),
the related loan documents or applicable law or result in an Adverse REMIC Event
or an Adverse Grantor Trust Event. Furthermore, neither the Special Servicer nor
the Master Servicer shall be obligated to seek approval from the Somerset
Collection Controlling Party for any actions to be taken by such servicer with
respect to the Somerset Collection Loan Group or any related REO Property if:
(i) such servicer has, as provided in Section 6.13(a), notified the Somerset
Collection Controlling Party in writing of various actions that such servicer
proposes to take with respect to the workout or liquidation of the Somerset
Collection Loan Group; and (ii) for 60 days following the first such notice, the
Somerset Collection Controlling Party has objected to all of those proposed
actions and has failed to suggest any alternative actions that such servicer
considers to be consistent with the Servicing Standard.
Also notwithstanding the foregoing, each of the Master Servicer and
the Special Servicer, prior to such servicer's taking (or, in the case of the
Special Servicer, if and when appropriate under this Agreement, consenting to
the Master Servicer's taking) any of the Somerset Collection Specially
Designated Servicing Actions, and the Special Servicer, prior to such servicer's
taking any action at the direction of the Somerset Collection Controlling Party
pursuant to the second paragraph of Section 6.13(a), shall in each such case
notify the respective Somerset Collection Pari Passu Non-Trust Mortgage Loan
Noteholder. The Somerset Collection Pari Passu Non-Trust Mortgage Loan
Noteholder
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shall, upon receipt of such notice, have ten (10) Business Days to advise and
consult with the Master Servicer or the Special Servicer, as applicable, with
respect to such actions; provided that the Master Servicer or the Special
Servicer, as applicable, shall not be obligated to take any advice from, or
follow any direction given by, the Somerset Collection Pari Passu Non-Trust
Mortgage Loan Noteholder; and provided, further, that the Somerset Collection
Pari Passu Non-Trust Mortgage Loan Noteholder's request to communicate with, or
obtain information from, the Master Servicer or the Special Servicer, as
applicable, in accordance with this Section 6.13(b) must be made within eight
(8) Business Days of its receipt of notice in accordance with the preceding
sentence; and provided, further, that, in the event that the Master Servicer or
the Special Servicer, as applicable, determines that immediate action is
necessary to protect the interests of the Certificateholders and the Somerset
Collection Non-Trust Mortgage Loan Noteholders (as a collective whole), such
servicer may take (or, in the case of the Special Servicer, if and when
appropriate under this Agreement, may consent to the Master Servicer's taking)
the subject action without consulting with the Somerset Collection Pari Passu
Non-Trust Mortgage Loan Noteholder in accordance with this Section 6.13(b). The
Master Servicer or the Special Servicer, as applicable, within two (2) Business
Days of receiving any request from the Somerset Collection Pari Passu Non-Trust
Mortgage Loan Noteholder with respect to exercising its consultation rights
under this Section 6.13(b), shall (subject to the three provisos to the
immediately preceding sentence): (i) make available to such requesting Somerset
Collection Pari Passu Non-Trust Mortgage Loan Noteholder, in person at the
Primary Servicing Offices of such servicer or by telephone conference, for a
reasonable time period, one or more of such servicer's officers responsible for
the servicing and administration of the Somerset Collection Loan Group or any
related REO Property; (ii) provide such requesting Somerset Collection Pari
Passu Non-Trust Mortgage Loan Noteholder such information regarding the proposed
action that is in such servicer's possession or easily obtainable by it,
including such servicer's reasons for determining to take or permit a proposed
action, as the Somerset Collection Pari Passu Non-Trust Mortgage Loan Noteholder
may request; and (iii) communicate with the Somerset Collection Controlling
Party regarding any advice or other views expressed by such requesting Somerset
Collection Pari Passu Non-Trust Mortgage Loan Noteholder regarding the subject
servicing actions. Nothing contained in this paragraph shall, or is intended to,
limit or alter the Somerset Collection Controlling Party's rights under Section
6.13(a).
The Somerset Collection Pari Passu Non-Trust Mortgage Loan Noteholder
may designate, in writing, a representative to exercise its rights under the
prior paragraph (copies of such writing to be delivered to the Trustee, the
Master Servicer and the Special Servicer). Such designation shall remain in
effect until it is revoked by the Somerset Collection Pari Passu Non-Trust
Mortgage Loan Noteholder by a writing delivered to the Trustee, the Master
Servicer and the Special Servicer.
(c) The Somerset Collection Controlling Party will not have any
liability to the Trust or the Certificateholders or any of the other Somerset
Collection Non-Trust Mortgage Loan Noteholders, in the case of a Somerset
Collection Non-Trust Mortgage Loan Noteholder or its designee acting in such
capacity, or to any of the Somerset Collection Non-Trust Mortgage Loan
Noteholders, in the case of the Controlling Class Representative acting in such
capacity, for any action taken, or for refraining from the taking of any action,
in good faith pursuant to this Agreement or the Somerset Collection Co-Lender
Agreement, or for errors in judgment; provided, however, that the Somerset
Collection Controlling Party will not be protected against 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 or duties.
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(d) The Somerset Collection Directing Lender may, in accordance with
Section 3.02(d) of the Somerset Collection Co-Lender Agreement, designate a
representative to exercise its rights and powers under Section 3.02 of the
Somerset Collection Co-Lender Agreement and this Section 6.13. In that regard,
upon the occurrence and continuance of a Somerset Collection Change of Control
Event, and for so long as the Trust, as holder of the Somerset Collection Trust
Mortgage Loan (or any successor REO Trust Mortgage Loan with respect thereto),
is the Somerset Collection Directing Lender, the Controlling Class
Representative (i) is hereby designated as the representative of the Trust for
purposes of exercising the rights and powers of the Somerset Collection
Directing Lender under the Somerset Collection Co-Lender Agreement and (ii)
shall be the Somerset Collection Controlling Party hereunder. The Trustee shall
take such actions as are necessary or appropriate to make such designation
effective in accordance with Section 3.02(d) of the Somerset Collection
Co-Lender Agreement. The Master Servicer shall provide the parties to this
Agreement with notice of the occurrence of a Somerset Collection Change of
Control Event, promptly upon becoming aware thereof.
(e) Each Somerset Collection Non-Trust Mortgage Loan Noteholder shall
be entitled to receive, upon request, a copy of any notice or report required to
be delivered (upon request or otherwise) to the Trustee with respect to the
Somerset Collection Loan Group or any related REO Property by any other party
hereto. Any such other party shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such copies
in accordance with this Section 6.13(e).
(f) Notwithstanding anything herein to the contrary, any appointment
of a successor Special Servicer hereunder, insofar as it affects the Somerset
Collection Loan Group or any related REO Property, will be subject to the
consultation rights of the Somerset Collection Non-Trust Mortgage Loan
Noteholders under Section 3.02 of the Somerset Collection Co-Lender Agreement.
(g) Notwithstanding anything herein to the contrary, but subject to
the next sentence, if the Somerset Collection Pari Passu Non-Trust Mortgage Loan
or any successor REO Mortgage Loan with respect thereto is included in a rated
commercial mortgage securitization, and if any particular servicing action with
respect to the Somerset Collection Loan Group or any related REO Property
requires confirmation of ratings of the Certificates in connection therewith
under any provision of this Agreement, then the Master Servicer or the Special
Servicer, as applicable, shall likewise obtain a similar confirmation of ratings
from Xxxxx'x, S&P and/or Fitch, as applicable, with respect to any rated class
of Somerset Collection Pari Passu Non-Trust Mortgage Loan Securities (regardless
of whether or not expressly required under such provision of this Agreement).
Also notwithstanding anything to the contrary contained herein, any costs
associated with confirmation of the ratings of any rated Somerset Collection
Pari Passu Non-Trust Mortgage Loan Securities (whether pursuant to the prior
sentence or otherwise pursuant to this Agreement or the Somerset Collection
Co-Lender Agreement) shall, to the extent not recoverable from the related
Mortgagor or other party seeking to take the action that requires such
confirmation of ratings or another source besides the Trust, shall be borne by
the trust that holds the Somerset Collection Pari Passu Non-Trust Mortgage Loan
or any successor REO Mortgage Loan with respect thereto, and if such trust is
unwilling to cover the cost of obtaining such confirmation of ratings, then no
party hereto shall be obligated to obtain such confirmation of ratings
(notwithstanding anything herein to the contrary).
(h) The parties hereto recognize and acknowledge the rights of the
Somerset Collection Non-Trust Mortgage Loan Noteholders under the Somerset
Collection Co-Lender
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Agreement, including the rights of the Somerset Collection Subordinate Non-Trust
Mortgage Loan Noteholder to: (i) purchase the Somerset Collection Trust Mortgage
Loan and the Somerset Collation Pari Passu Non-Trust Mortgage Loan under the
circumstances contemplated by Section 4.03 of the Somerset Collection Co-Lender
Agreement; and (ii) cure defaults with respect to the Somerset Collection Trust
Mortgage Loan and the Somerset Collection Pari Passu Non-Trust Mortgage Loan in
accordance with Article VII of the Somerset Collection Co-Lender Agreement. In
connection with the foregoing, the Master Servicer (if the Somerset Collection
Trust Mortgage Loan is a Performing Serviced Mortgage Loan) or the Special
Servicer (if the Somerset Collection Trust Mortgage Loan is a Specially Serviced
Mortgage Loan), as applicable, shall take all actions required on the part of
the holder of the Somerset Collection Trust Mortgage Loan or contemplated to be
performed by a servicer, in any case under Section 4.03 or Article VII, as
applicable, of the Somerset Collection Co-Lender Agreement, including the
delivery of all necessary notices on a timely basis, as well as all other
actions necessary and appropriate to effect the transfer of the Somerset
Collection Trust Mortgage Loan and the Somerset Collection Pari Passu Non-Trust
Mortgage Loan to the Somerset Collection Subordinate Non-Trust Mortgage Loan
Noteholder or its designee and/or to permit the Somerset Collection Subordinate
Non-Trust Mortgage Loan Noteholder to effectuate a cure of the Somerset
Collection Trust Mortgage Loan and the Somerset Collection Pari Passu Non-Trust
Mortgage Loan.
(i) The Master Servicer (if the Somerset Collection Trust Mortgage
Loan is a Performing Serviced Mortgage Loan) or the Special Servicer (if the
Somerset Collection Trust Mortgage Loan is a Specially Serviced Mortgage Loan),
as applicable, shall take all actions relating to the servicing and/or
administration of, and the preparation and delivery of reports and other
information with respect to, the Somerset Collection Loan Group or any related
REO Property required to be performed by the holder of the Somerset Collection
Trust Mortgage Loan or contemplated to be performed by a servicer, in any case
pursuant to the Somerset Collection Co-Lender Agreement and/or any related
mezzanine loan intercreditor agreement.
(j) If there are any conflicts between this Section 6.13 and any of
the loan documents relating to the Somerset Collection Loan Group or between
this Section 6.13 and the Somerset Collection Co-Lender Agreement, then such
loan documents or the Somerset Collection Co-Lender Agreement, as the case may
be, shall control.
SECTION 6.14. Certain Matters Regarding the Xxxxxxxx Place Loan
Combination.
(a) If a Servicing Transfer Event occurs with respect to the Xxxxxxxx
Place Loan Pair, the Special Servicer shall, as if it was the Xxxxxxxx Place
Lead Lender, prepare a Xxxxxxxx Place Asset Status Report for the Xxxxxxxx Place
Loan Pair not later than 30 days after the servicing of the Xxxxxxxx Place Loan
Pair is transferred to the Special Servicer and shall promptly deliver, to the
extent permitted below, such Xxxxxxxx Place Asset Status Report to the Xxxxxxxx
Place Non-Trust Mortgage Loan Noteholder.
Provided that the Xxxxxxxx Place Non-Trust Mortgage Loan Noteholder,
or any interest in the Xxxxxxxx Place Non-Trust Mortgage Loan Noteholder, is not
held by the related Mortgagor or any "Borrower Related Party" (within the
meaning of the Xxxxxxxx Place Intercreditor Agreement), the Special Servicer
shall promptly provide the Xxxxxxxx Place Non-Trust Mortgage Loan Majority
Noteholder with copies of the Xxxxxxxx Place Asset Status Reports (although,
except to the extent provided below and in the Xxxxxxxx Place Intercreditor
Agreement with respect to certain actions, the
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Xxxxxxxx Place Non-Trust Mortgage Loan Majority Noteholder will not have any
consultation rights or the right to approve or disapprove such reports). For so
long as there has not been a Xxxxxxxx Place Threshold Event with respect thereto
and for so long as the Mortgage Note for the Xxxxxxxx Place Non-Trust Mortgage
Loan is not held by the Mortgagor or any "Borrower Related Party" (within the
meaning of the Xxxxxxxx Place Intercreditor Agreement), if the Xxxxxxxx Place
Asset Status Report recommends any of the following actions:
(i) any foreclosure upon or comparable conversion (which may
include the acquisition of an REO Property) of the ownership of the
Xxxxxxxx Place Mortgaged Property;
(ii) any modification of a monetary term other than an extension
of the original maturity date for two years or less of the Xxxxxxxx Place
Loan Pair, including any acceptance of a discounted payoff;
(iii) any release of collateral for the Xxxxxxxx Place Loan Pair
(other than in accordance with the terms of, or upon satisfaction of, the
Xxxxxxxx Place Loan Pair); or
(iv) any acceptance of an assumption agreement releasing the
Mortgagor from liability under the Xxxxxxxx Place Loan Pair.
then, the Special Servicer may not implement the recommended action as outlined
in such Xxxxxxxx Place Asset Status Report unless the Xxxxxxxx Place Non-Trust
Mortgage Loan Majority Noteholder has approved such Xxxxxxxx Place Asset Status
Report in accordance with the following procedure. If the Xxxxxxxx Place
Non-Trust Mortgage Loan Majority Noteholder affirmatively approves in writing
any such Xxxxxxxx Place Asset Status Report or if, within 10 Business Days of
receiving a Xxxxxxxx Place Asset Status Report, the Xxxxxxxx Place Non-Trust
Mortgage Loan Majority Noteholder does not affirmatively disapprove the report
in writing, the Special Servicer shall have the right to implement the
recommended action as outlined in that Xxxxxxxx Place Asset Status Report
(except that the Special Servicer may not take any action that is contrary to
applicable law or the terms of the related loan documents, the Xxxxxxxx Place
Intercreditor Agreement or this Agreement). If the Xxxxxxxx Place Non-Trust
Mortgage Loan Majority Noteholder disapproves of any such Xxxxxxxx Place Asset
Status Report within 10 Business Days of its receipt of that report, the Special
Servicer shall revise the report and deliver to the Xxxxxxxx Place Non-Trust
Mortgage Loan Majority Noteholder, among others, a new Xxxxxxxx Place Asset
Status Report as soon as practicable, but in no event later than 10 days after
such disapproval. If the Xxxxxxxx Place Non-Trust Mortgage Loan Majority
Noteholder affirmatively approves in writing any such revised Xxxxxxxx Place
Asset Status Report or if, within five Business Days of receiving such revised
Xxxxxxxx Place Asset Status Report, the Xxxxxxxx Place Non-Trust Mortgage Loan
Majority Noteholder does not affirmatively disapprove the report in writing, the
Special Servicer shall have the right to implement the recommended action as
outlined in that Xxxxxxxx Place Asset Status Report (except that the Special
Servicer may not take any action that is contrary to applicable law or the terms
of the related loan documents, the Xxxxxxxx Place Intercreditor Agreement or
this Agreement). If the Xxxxxxxx Place Non-Trust Mortgage Loan Majority
Noteholder disapproves of such revised Xxxxxxxx Place Asset Status Report within
five Business Days of its receipt of that report, the Special Servicer shall
again revise the report and deliver to the Xxxxxxxx Place Non-Trust Mortgage
Loan Majority Noteholder, among others, a new Xxxxxxxx Place Asset Status Report
as soon as practicable, but in no event later than 10 days after such
disapproval. Following delivery of such third revised Xxxxxxxx Place Asset
Status Report, the Special Servicer shall implement the
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recommended action as outlined in such Xxxxxxxx Place Asset Status Report
(except that the Special Servicer may not take any action that is contrary to
applicable law or the terms of the related loan documents, the Xxxxxxxx Place
Intercreditor Agreement or this Agreement).
Notwithstanding the prior paragraph, the Special Servicer may take any
action set forth in a Xxxxxxxx Place Asset Status Report before the expiration
of the 10-Business Day period during which the Xxxxxxxx Place Non-Trust Mortgage
Loan Majority Noteholder may reject such report if (A) the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders and (B) it has made a
reasonable effort to contact the Xxxxxxxx Place Non-Trust Mortgage Loan Majority
Noteholder. The Special Servicer is not permitted to take any action
inconsistent with an approved Xxxxxxxx Place Asset Status Report, unless such
action would be required in the Special Servicer's reasonable judgment in order
to act in accordance with the Servicing Standard.
Notwithstanding anything to the contrary contained in this Agreement
or the Xxxxxxxx Place Intercreditor Agreement (except as provided in Sections
4(d), 4(g), 4(i), 4(k) and 18 of the Xxxxxxxx Place Intercreditor Agreement), if
the Xxxxxxxx Place Asset Status Report recommends one of the following acts with
respect to the Xxxxxxxx Place Loan Pair, so long as the Xxxxxxxx Place Non-Trust
Mortgage Loan Noteholder, or any interest in the Xxxxxxxx Place Non-Trust
Mortgage Loan Noteholder, is not the Mortgagor or a "Borrower Related Party"
(within the meaning of the Xxxxxxxx Place Intercreditor Agreement), the Special
Servicer shall consult with the Xxxxxxxx Place Non-Trust Mortgage Loan Majority
Noteholder prior to taking such action (although the Special Servicer may reject
any advice or direction of the Xxxxxxxx Place Non-Trust Mortgage Loan Majority
Noteholder):
(i) any modification of, or waiver with respect to, the Xxxxxxxx
Place Loan Pair that would result in the extension of the maturity date or
extended maturity date thereof, a reduction in the interest rate borne
thereby or the monthly debt service payment or a deferral or a forgiveness
of interest on or principal of the Xxxxxxxx Place Loan Pair or a
modification or waiver of any other monetary term of the Xxxxxxxx Place
Loan Pair relating to the timing or amount of any payment of principal or
interest (other than Default Interest) or any other material sums due and
payable under the related loan documents or a modification or waiver of any
provision of the Xxxxxxxx Place Loan Pair which restricts the Mortgagor or
its equity owners from incurring additional indebtedness;
(ii) any modification of, or waiver with respect to, the Xxxxxxxx
Place Loan Pair that would result in a discounted payoff of the Xxxxxxxx
Place Loan Pair;
(iii) any foreclosure upon or comparable conversion of the
ownership of the Xxxxxxxx Place Mortgaged Property or any acquisition of
the Xxxxxxxx Place Mortgaged Property by deed-in-lieu of foreclosure;
(iv) any proposed sale of any Xxxxxxxx Place REO Property (other
than in connection with the termination of any Trust pursuant to Section
9.01) for less than the REO Purchase Price (within the meaning of the
Xxxxxxxx Place Intercreditor Agreement);
(v) any determination to bring the Xxxxxxxx Place Mortgaged
Property into compliance with applicable environmental laws;
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(vi) any acceptance of substitute or additional collateral for
the Xxxxxxxx Place Loan Pair (other than in accordance with the terms
thereof); and
(vii) any waiver of a "due-on-sale" or "due-on-encumbrance"
clause.
Notwithstanding anything contained in the foregoing provisions of this
Section 6.14(a), the Special Servicer shall not comply with any advice,
direction, objection or consultation provided by the Xxxxxxxx Place Non-Trust
Mortgage Loan Majority Noteholder if such advice, direction, objection or
consultation would (i) require or cause the Special Servicer to violate any
applicable law, (ii) be inconsistent with the Servicing Standard, (iii) require
or cause the Special Servicer to violate the provisions of this Agreement or the
Xxxxxxxx Place Intercreditor Agreement relating to the REMIC Provisions, (iv)
require or cause the Special Servicer to violate any other provisions of this
Agreement or the Xxxxxxxx Place Intercreditor Agreement, (v) require or cause
the Special Servicer to violate the terms of the Xxxxxxxx Place Loan Pair, (vi)
expose any party to this Agreement or its affiliates, officers, directors,
employees or agents to any claim, suit or liability, or (vii) materially expand
the scope of any servicer's responsibilities under this Agreement. Any
direction, approval or disapproval of the Xxxxxxxx Place Non-Trust Mortgage Loan
Majority Noteholder shall be subject to Section 4(g) of the Xxxxxxxx Place
Intercreditor Agreement.
(b) The Xxxxxxxx Place Non-Trust Mortgage Loan Majority Noteholder
will not have any liability to the Certificateholders or any other Person for
any action taken, or for refraining from the taking of any action or the giving
of any consent or the failure to give any consent in good faith pursuant to this
Agreement, or errors in judgment, absent any loss, liability or expense incurred
by reason of its willful misfeasance, bad faith or gross negligence. By its
acceptance of a Certificate, each Holder thereof will be deemed to have
confirmed its agreement that the Xxxxxxxx Place Non-Trust Mortgage Loan Majority
Noteholder may take or refrain from taking actions, or give or refrain from
giving consents, that favor the interests of the Xxxxxxxx Place Non-Trust
Mortgage Loan Noteholder over the Holders of the Certificates, and that the
Xxxxxxxx Place Non-Trust Mortgage Loan Majority Noteholder may have special
relationships and interests that conflict with the interests of the Holders of
the Certificates and, absent willful misfeasance, bad faith or gross negligence
on the part of the Xxxxxxxx Place Non-Trust Mortgage Loan Majority Noteholder,
will be deemed to have agreed to take no action against the Xxxxxxxx Place
Non-Trust Mortgage Loan Majority Noteholder or any of its officers, directors,
employees, principals or agents as a result of such special relationships or
interests, and that the Xxxxxxxx Place Non-Trust Mortgage Loan Majority
Noteholder will not be deemed to have been grossly negligent or reckless, or to
have acted in bad faith or engaged in willful misfeasance or to have recklessly
disregarded any exercise of its rights by reason of its having acted or
refrained from acting, or having given any consent or having failed to give any
consent, solely in the interests of the Xxxxxxxx Place Non-Trust Mortgage Loan
Noteholder.
(c) Subject to Section 6.14(d), if a Xxxxxxxx Place Threshold Event
has occurred and is continuing, then the Controlling Class Representative will
be entitled to advise the Special Servicer (in the event the Special Servicer is
authorized under this Agreement to take the subject action) or the Master
Servicer (in the event the Master Servicer is authorized under this Agreement to
take the subject action), as applicable, with respect to any and all Xxxxxxxx
Place Specially Designated Servicing Actions with respect to the Xxxxxxxx Place
Loan Pair or any related REO Property; and, further subject to Section 6.14(d),
if a Xxxxxxxx Place Threshold Event has occurred and is continuing, then neither
the Special Servicer nor the Master Servicer will be permitted to take any of
the Xxxxxxxx Place Specially
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Designated Servicing Actions with respect to the Xxxxxxxx Place Loan Pair or any
related REO Property unless and until (i) it has notified the Controlling Class
Representative in writing and (ii) the Controlling Class Representative has not
objected in writing within ten (10) Business Days of having been notified
thereof and having been provided with all reasonably requested information with
respect thereto (it being understood and agreed that if such written objection
has not been received by the Special Servicer or the Master Servicer, as
applicable, within such ten (10) Business Day period, then the Controlling Class
Representative will be deemed to have approved of the subject action); provided
that, in the event that the Special Servicer or the Master Servicer, as
applicable, determines that immediate action is necessary to protect the
interests of the Certificateholders and the Xxxxxxxx Place Non-Trust Mortgage
Loan Noteholder (as a collective whole), the Special Servicer or the Master
Servicer, as the case may be, may take any such action without waiting for the
Controlling Class Representative's response.
In addition, subject to Section 6.14(d), if a Xxxxxxxx Place Threshold
Event has occurred and is continuing, then the Controlling Class Representative
may direct the Special Servicer or the Master Servicer, as appropriate based on
their respective duties hereunder, to take, or to refrain from taking, such
actions with respect to the Xxxxxxxx Place Loan Pair or any related REO Property
as the Controlling Class Representative may deem consistent with the Xxxxxxxx
Place Intercreditor Agreement or as to which provision is otherwise made in this
Agreement. Upon reasonable request, the Special Servicer or the Master Servicer,
as appropriate based on their respective duties hereunder, shall, with respect
to the Xxxxxxxx Place Loan Pair, provide the Controlling Class Representative
with any information in such servicer's possession with respect to such matters,
including its reasons for determining to take a proposed action; provided that
such information shall also be provided, in a written format, to the Trustee who
shall make it available for review pursuant to Section 8.14(b).
The Controlling Class Representative will be entitled to receive a
copy of each Xxxxxxxx Place Asset Status Report and, if no Xxxxxxxx Place
Threshold Event exists, to consult with the Special Servicer regarding such
report to the same extent as the Xxxxxxxx Place Non-Trust Mortgage Loan Majority
Noteholder.
Each of the Master Servicer (with respect to Performing Mortgage
Loans) and the Special Servicer (with respect to Specially Serviced Mortgage
Loans), as applicable, shall notify the Xxxxxxxx Place Non-Trust Mortgage Loan
Noteholder and the Controlling Class Representative of any release or
substitution of collateral for the Xxxxxxxx Place Loan Pair even if such release
or substitution is required by the terms of the Xxxxxxxx Place Loan Pair.
(d) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Controlling Class Representative, as
contemplated by Section 6.14(c), may (and the Special Servicer and the Master
Servicer shall each ignore and act without regard to any such advice, direction
or objection that such servicer has determined, in its reasonable, good faith
judgment, would) require, cause or permit such servicer to violate any provision
of the Xxxxxxxx Place Intercreditor Agreement or this Agreement (exclusive of
Section 6.14(c)) (including such servicer's obligation to act in accordance with
the Servicing Standard), the related loan documents or applicable law or result
in an Adverse REMIC Event or an Adverse Grantor Trust Event. Furthermore,
neither the Master Servicer nor the Special Servicer shall be obligated to seek
approval from the Controlling Class Representative for any actions to be taken
by such servicer with respect to the Xxxxxxxx Place Loan Pair or any related REO
Property if: (i) such servicer has, as provided in Section 6.14(c), notified the
Controlling Class Representative in writing of various actions that such
servicer proposes to take with respect to the
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workout or liquidation of the Xxxxxxxx Place Loan Pair; and (ii) for 60 days
following the first such notice, the Controlling Class Representative has
objected to all of those proposed actions and has failed to suggest any
alternative actions that such servicer considers to be consistent with the
Servicing Standard.
(e) The parties hereto recognize and acknowledge the rights of the
Xxxxxxxx Place Non-Trust Mortgage Loan Noteholder and/or the Xxxxxxxx Place
Non-Trust Mortgage Loan Majority Noteholder under the Xxxxxxxx Place
Intercreditor Agreement, including the right thereof (i) to purchase the
Xxxxxxxx Place Trust Mortgage Loan under the circumstances contemplated by
Section 7 of the Xxxxxxxx Place Intercreditor Agreement and/or (ii) to cure
defaults under the Xxxxxxxx Place Trust Mortgage Loan under the circumstances
contemplated by Section 8 of the Xxxxxxxx Place Intercreditor Agreement. In
connection with the foregoing, the Master Servicer (if the Xxxxxxxx Place Trust
Mortgage Loan is a Performing Serviced Mortgage Loan) or the Special Servicer
(if the Xxxxxxxx Place Trust Mortgage Loan is a Specially Serviced Mortgage
Loan), as applicable, shall take all actions required on the part of the
Xxxxxxxx Place Lead Lender or contemplated to be performed by a servicer, in any
case under Section 7 or Section 8, as applicable, of the Xxxxxxxx Place
Intercreditor Agreement, including the delivery of all necessary notices on a
timely basis, as well as all other actions necessary and appropriate to effect
the transfer of the Xxxxxxxx Place Trust Mortgage Loan to the Xxxxxxxx Place
Non-Trust Mortgage Loan Noteholder or its designee and/or to permit the Xxxxxxxx
Place Non-Trust Mortgage Loan Majority Noteholder to effectuate a cure of the
Xxxxxxxx Place Trust Mortgage Loan.
(f) The Master Servicer (if the Xxxxxxxx Place Trust Mortgage Loan is
a Performing Serviced Mortgage Loan) or the Special Servicer (if the Xxxxxxxx
Place Trust Mortgage Loan is a Specially Serviced Mortgage Loan), as applicable,
shall take all actions relating to the servicing and/or administration of, and
the preparation and delivery of reports and other information with respect to,
the Xxxxxxxx Place Loan Pair or any related REO Property required to be
performed by the Xxxxxxxx Place Lead Lender or contemplated to be performed by a
servicer, in any case pursuant to the Xxxxxxxx Place Intercreditor Agreement
and/or any related mezzanine loan intercreditor agreement.
(g) If there are any conflicts between this Section 6.14 and any of
the loan documents relating to the Xxxxxxxx Place Loan Pair or between this
Section 6.14 and the Xxxxxxxx Place Intercreditor Agreement, then such loan
documents or the Xxxxxxxx Place Intercreditor Agreement, as the case may be,
shall control.
SECTION 6.15. Certain Matters Regarding the Cumberland Place Loan
Combination.
(a) Subject to Section 6.15(b), and further subject to Section
3.01(b), Section 3.01(c) and Section 3.03(b) of the Cumberland Place Co-Lender
Agreement, the Cumberland Place Controlling Party will be entitled to advise the
Special Servicer (in the event the Special Servicer is authorized under this
Agreement to take the subject action) or the Master Servicer (in the event the
Master Servicer is authorized under this Agreement to take the subject action),
as applicable, with respect to any and all Cumberland Place Specially Designated
Servicing Actions with respect to the Cumberland Place Loan Pair or any related
REO Property; and, further subject to Section 6.15(b) of this Agreement and
Section 3.03(b) of the Cumberland Place Co-Lender Agreement, neither the Special
Servicer nor the Master Servicer will be permitted to take any of the Cumberland
Place Specially Designated Servicing Actions with respect to the Cumberland
Place Loan Pair or any related REO Property unless and until (i) it has
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notified the Cumberland Place Non-Trust Mortgage Loan Noteholder and the
Controlling Class Representative in writing and (ii) the Cumberland Place
Controlling Party has not objected in writing within ten (10) Business Days of
having been notified thereof and having been provided with all reasonably
requested information with respect thereto (it being understood and agreed that
if such written objection has not been received by the Special Servicer or the
Master Servicer, as applicable, within such ten (10) Business Day period, then
the Cumberland Place Controlling Party will be deemed to have approved of the
subject action); provided that, in the event that the Special Servicer or the
Master Servicer, as applicable, determines that immediate action is necessary to
protect the interests of the Certificateholders and the Cumberland Place
Non-Trust Mortgage Loan Noteholder (as a collective whole), the Special Servicer
or the Master Servicer, as the case may be, may take any such action without
waiting for the Cumberland Place Controlling Party's response; and provided,
further, that, under circumstances where the Controlling Class Representative is
not the Cumberland Place Controlling Party, nothing herein shall be intended to
limit the right of the Controlling Class Representative to consult with the
Special Servicer or the Master Servicer, as applicable, regarding the Cumberland
Place Trust Mortgage Loan or any related REO Property, and during the ten (10)
Business Day period referred to above, the Special Servicer or the Master
Servicer, as applicable, shall consult with the Controlling Class Representative
regarding its views as to the proposed action (but may, in its sole discretion,
reject any advice, objection or direction from the Controlling Class
Representative) and, upon reasonable request, the Special Servicer or the Master
Servicer, as applicable, shall provide the Controlling Class Representative with
any information in such servicer's possession with respect to such matters,
including its reasons for determining to take a proposed action.
In addition, subject to Section 6.15(b), and further subject to
Section 3.01(b), Section 3.01(c) and Section 3.03(b) of the Cumberland Place
Co-Lender Agreement, the Cumberland Place Controlling Party may direct the
Special Servicer to take, or to refrain from taking, such actions with respect
to the Cumberland Place Loan Pair (which such Mortgage Loans are Specially
Serviced Mortgage Loans) or any related REO Property as the Cumberland Place
Controlling Party may deem consistent with the Cumberland Place Co-Lender
Agreement or as to which provision is otherwise made herein or in the Cumberland
Place Co-Lender Agreement. Upon reasonable request, the Special Servicer or the
Master Servicer, as appropriate based on their respective duties hereunder,
shall, with respect to the Cumberland Place Loan Pair, provide the Cumberland
Place Controlling Party with any information in such servicer's possession with
respect to such matters, including its reasons for determining to take a
proposed action; provided that such information shall also be provided, in a
written format, to the Trustee who shall make it available for review pursuant
to Section 8.14(b). Promptly following the Special Servicer or the Master
Servicer receiving any direction from the Cumberland Place Controlling Party as
contemplated by this paragraph, such servicer shall notify the Trustee, the
Controlling Class Representative (if it is not the Cumberland Place Controlling
Party) and the Cumberland Place Non-Trust Mortgage Loan Noteholder (if neither
it nor its designee is the Cumberland Place Controlling Party).
Each of the Master Servicer (with respect to Performing Mortgage
Loans) and the Special Servicer (with respect to Specially Serviced Mortgage
Loans), as applicable, shall notify the Cumberland Place Non-Trust Mortgage Loan
Noteholder, the Controlling Class Representative and any other Person that may
be the Cumberland Place Controlling Party of any release or substitution of
collateral for the Cumberland Place Loan Pair even if such release or
substitution is required by the terms of the Cumberland Place Loan Pair.
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(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Cumberland Place Controlling Party, as
contemplated by Section 6.15(a), may (and the Special Servicer and the Master
Servicer shall each ignore and act without regard to any such advice, direction
or objection that such servicer has determined, in its reasonable, good faith
judgment, would) require, cause or permit such servicer to violate any provision
of the Cumberland Place Co-Lender Agreement or this Agreement (exclusive of
Section 6.15(a)) (including such servicer's obligation to act in accordance with
the Servicing Standard), the related loan documents or applicable law or result
in an Adverse REMIC Event or an Adverse Grantor Trust Event. Furthermore,
neither the Master Servicer nor the Special Servicer shall be obligated to seek
approval from the Cumberland Place Controlling Party for any actions to be taken
by such servicer with respect to the Cumberland Place Loan Pair or any related
REO Property if: (i) such servicer has, as provided in Section 6.15(a), notified
the Cumberland Place Controlling Party in writing of various actions that such
servicer proposes to take with respect to the workout or liquidation of the
Cumberland Place Loan Pair; and (ii) for 60 days following the first such
notice, the Cumberland Place Controlling Party has objected to all of those
proposed actions and has failed to suggest any alternative actions that such
servicer considers to be consistent with the Servicing Standard.
(c) The Cumberland Place Controlling Party will not have any liability
to the Trust or the Certificateholders, in the case of the Cumberland Place
Non-Trust Mortgage Loan Noteholder or its designee acting in such capacity, or
to the Cumberland Place Non-Trust Mortgage Loan Noteholder, in the case of the
Controlling Class Representative acting in such capacity, for any action taken,
or for refraining from the taking of any action, in good faith pursuant to this
Agreement or the Cumberland Place Co-Lender Agreement, or for errors in
judgment; provided, however, that the Cumberland Place Controlling Party will
not be protected against 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 or duties.
(d) The Cumberland Place Directing Lender may, in accordance with
Section 3.03(d) of the Cumberland Place Co-Lender Agreement, designate a
representative to exercise its rights and powers under Section 3.03 of the
Cumberland Place Co-Lender Agreement and this Section 6.15. In that regard, if
and for so long as (but only if and for so long as) a Cumberland Place Change of
Control Event has occurred and is continuing, and the Trust, as holder of the
Cumberland Place Trust Mortgage Loan (or any successor REO Trust Mortgage Loan
with respect thereto), is the Cumberland Place Directing Lender, the Controlling
Class Representative (i) is hereby designated as the representative of the Trust
for purposes of exercising the rights and powers of the Cumberland Place
Directing Lender under Sections 3.03(a) and 3.03(b) (and to the extent they
relate to the foregoing, Section 3.03(c)) of the Cumberland Place Co-Lender
Agreement and (ii) shall be the Cumberland Place Controlling Party hereunder.
The Trustee shall take such actions as are necessary or appropriate to make such
designation effective in accordance with Section 3.03(d) of the Cumberland Place
Co-Lender Agreement. The Master Servicer shall provide the parties to this
Agreement with notice of the occurrence of a Cumberland Place Change of Control
Event, promptly upon becoming aware of thereof.
(e) The Cumberland Place Non-Trust Mortgage Loan Noteholder shall be
entitled to receive, upon request, a copy of any notice or report required to be
delivered (upon request or otherwise) to the Trustee with respect to the
Cumberland Place Loan Pair or any related REO Property by any other party
hereto. Any such other party shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such copies
in accordance with this Section 6.15(e).
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(f) The parties hereto recognize and acknowledge the rights of the
Cumberland Place Non-Trust Mortgage Loan Noteholder under the Cumberland Place
Co-Lender Agreement, including the right thereof (i) to purchase the Cumberland
Place Trust Mortgage Loan under the circumstances contemplated by Section 5.01
of the Cumberland Place Co-Lender Agreement and/or (ii) to cure defaults under
the Cumberland Place Trust Mortgage Loan under the circumstances contemplated by
Section 5.02 of the Cumberland Place Co-Lender Agreement. In connection with the
foregoing, the Master Servicer (if the Cumberland Place Trust Mortgage Loan is a
Performing Serviced Mortgage Loan) or the Special Servicer (if the Cumberland
Place Trust Mortgage Loan is a Specially Serviced Mortgage Loan), as applicable,
shall take all actions required on the part of the holder of the Cumberland
Place Trust Mortgage Loan or contemplated to be performed by a servicer, in any
case under Section 5.01 or Section 5.02, as applicable, of the Cumberland Place
Co-Lender Agreement, including the delivery of all necessary notices on a timely
basis, as well as all other actions necessary and appropriate to effect the
transfer of the Cumberland Place Trust Mortgage Loan to the Cumberland Place
Non-Trust Mortgage Loan Noteholder or its designee and/or to permit the
Cumberland Place Non-Trust Mortgage Loan Noteholder to effectuate a cure of the
Cumberland Place Trust Mortgage Loan.
(g) The Master Servicer (if the Cumberland Place Trust Mortgage Loan
is a Performing Serviced Mortgage Loan) or the Special Servicer (if the
Cumberland Place Trust Mortgage Loan is a Specially Serviced Mortgage Loan), as
applicable, shall take all actions relating to the servicing and/or
administration of, or the preparation and delivery of reports and other
information with respect to, the Cumberland Place Loan Pair or any related REO
Property required to be performed by the holder of the Cumberland Place Trust
Mortgage Loan or contemplated to be performed by a servicer, in any case
pursuant to the Cumberland Place Co-Lender Agreement and/or any related
mezzanine loan intercreditor agreement.
(h) If there are any conflicts between this Section 6.15 and any of
the loan documents relating to the Cumberland Place Loan Pair or between this
Section 6.15 and the Cumberland Place Co-Lender Agreement, then such loan
documents or the Cumberland Place Co-Lender Agreement, as the case may be, shall
control.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default and GIC Office Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into a
Custodial Account, any amount required to be so deposited by it under this
Agreement, which failure continues unremedied for one (1) Business Day
following the date on which a deposit was first required to be made; or
(ii) any failure by the Special Servicer to deposit into an REO
Account or to deposit into, or to remit to the Master Servicer for deposit
into, a Custodial Account, any amount required to be so deposited or
remitted under this Agreement, which failure continues unremedied for one
(1) Business Day following the date on which a deposit or remittance was
first required to be made; or
(iii) any failure by the Master Servicer to deposit into, or
remit to the Trustee for deposit into, the Collection Account, any amount
(including any P&I Advances and any amounts to cover Prepayment Interest
Shortfalls) required to be so deposited or remitted by it under this
Agreement, which failure continues unremedied until 11:00 a.m. (New York
City time) on the applicable Distribution Date, or any failure by the
Master Servicer to make, on a timely basis, any required payment to any
Serviced Non-Trust Mortgage Loan Noteholder, which failure continues
unremedied until 11:00 a.m. (New York City time) on the Business Day next
following the date on which such payment was first required to be made; or
(iv) any failure by the Master Servicer or the Special Servicer
to timely make any Servicing Advance required to be made by it hereunder,
which Servicing Advance remains unmade for a period of three (3) Business
Days following the date on which notice of such failure shall have been
given to the Master Servicer or the Special Servicer, as the case may be,
by any other party hereto; or
(v) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other
covenants or agreements on the part of the Master Servicer or the Special
Servicer, as the case may be, contained in this Agreement, which failure
continues unremedied for a period of 30 days (15 days in the case of
payment of insurance premiums) after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to
the Master Servicer or the Special Servicer, as the case may be, by any
other party hereto or to the Master Servicer or the Special Servicer, as
the case may be (with a copy to each other party hereto), by a Serviced
Non-Trust Mortgage Loan Noteholder (if affected thereby) or by the Holders
of Certificates entitled to at least 25% of the Voting Rights, provided,
however, that with respect to any such failure which is not curable within
such 30-day (or, if applicable, 15-day) period, the Master Servicer or the
Special Servicer, as the case may be, shall have an additional cure period
of 30 days to effect such cure so long as the Master Servicer or the
Special Servicer, as the case may be, has commenced to cure such
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failure within the initial 30-day (or, if applicable, 15-day) period and
has provided the Trustee and any affected Serviced Non-Trust Mortgage Loan
Noteholder with an Officer's Certificate certifying that it has diligently
pursued, and is diligently continuing to pursue, a full cure; or
(vi) any breach on the part of the Master Servicer or the Special
Servicer of any of its representations or warranties contained in this
Agreement that materially and adversely affects the interests of any Class
of Certificateholders or any Serviced Non-Trust Mortgage Loan Noteholder
and which breach continues unremedied for a period of 30 days after the
date on which written notice of such breach, requiring the same to be
remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto or to the Master
Servicer or the Special Servicer, as the case may be (with a copy to each
other party hereto), by a Serviced Non-Trust Mortgage Loan Noteholder (if
affected thereby) or by the Holders of Certificates entitled to at least
25% of the Voting Rights, provided, however, that with respect to any such
breach which is not curable within such 30-day period, the Master Servicer
or the Special Servicer, as the case may be, shall have an additional cure
period of 30 days so long as the Master Servicer or the Special Servicer,
as the case may be, has commenced to cure such breach within the initial
30-day period and has provided the Trustee and any affected Serviced
Non-Trust Mortgage Loan Noteholder with an Officer's Certificate certifying
that it has diligently pursued, and is diligently continuing to pursue, a
full cure; or
(vii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged, undismissed or unstayed for a period
of 60 days; or
(viii) the Master Servicer or the Special Servicer shall consent
to the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating
to it or of or relating to all or substantially all of its property; or
(ix) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing; or
(x) a Servicing Officer of the Master Servicer or the Special
Servicer, as the case may be, obtains actual knowledge that Xxxxx'x has (1)
qualified, downgraded or withdrawn its rating or ratings of one or more
Classes of the Certificates or one or more classes of any Pari Passu
Non-Trust Mortgage Loan Securities or (2) placed one or more Classes of the
Certificates or one or more classes of any Pari Passu Non-Trust Mortgage
Loan Securities on "watch status" (and such "watch status" placement shall
not have been withdrawn by Xxxxx'x within 60 days of the date when the
Servicing Officer of the Master Servicer or the Special
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Servicer, as the case may be, obtained such actual knowledge) and, in the
case of either clause (1) or (2), cited servicing concerns with the Master
Servicer or the Special Servicer, as the case may be, as the sole or
material factor in such rating action; or
(xi) the Master Servicer or the Special Servicer is removed from
S&P's approved master servicer list or special servicer list, as the case
may be, and the ratings of one or more Classes of the Certificates or one
or more classes of any Pari Passu Non-Trust Mortgage Loan Securities by S&P
are qualified, downgraded or withdrawn in connection with the removal; or
(xii) at any time that any Pari Passu Non-Trust Mortgage Loan
Securities are rated by Fitch, the 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 such rating is not restored within 60 days after the
subject downgrade or withdrawal.
When a single entity acts as the Master Servicer and the Special
Servicer, an Event of Default in one capacity shall constitute an Event of
Default in the other capacity.
(b) If any Event of Default described in any of clauses (i) - (xii) of
subsection (a) above shall occur with respect to the Master Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") and shall be continuing, then, and in each and every such
case, so long as such Event of Default shall not have been remedied, the Trustee
may, and at the written direction of the Holders of Certificates entitled to at
least 25% of the Voting Rights, the Trustee shall, by notice in writing to the
Defaulting Party (with a copy of such notice to each other party hereto and the
Rating Agencies) terminate all of the rights and obligations (but not the
liabilities for actions and omissions occurring prior thereto) of the Defaulting
Party under this Agreement and in and to the Trust Fund and the Serviced
Non-Trust Mortgage Loans, other than its rights, if any, as a Certificateholder
hereunder or as the holder of any Serviced Non-Trust Mortgage Loan or any
interest therein; provided that the Master Servicer may not be terminated solely
for an Event of Default that affects only a Serviced Non-Trust Mortgage Loan
Noteholder or any class of related Pari Passu Non-Trust Mortgage Loan Securities
(except that a Sub-Servicer may be appointed in accordance with Section
7.01(c)); and provided, further, that, except as provided in Section 7.01(c),
the Special Servicer may not be terminated solely for an Event of Default that
affects only a Serviced Non-Trust Mortgage Loan Noteholder or any class of
related Pari Passu Non-Trust Mortgage Loan Securities. From and after the
receipt by the Defaulting Party of such written notice of termination, subject
to Section 7.01(c), 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), the Trust Fund, the Serviced Non-Trust Mortgage Loans (other
than as a holder thereof or any interest therein) or otherwise, shall pass to
and be vested in the Trustee pursuant to and under this section, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of and at the expense of the Defaulting Party, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Master Servicer and the Special Servicer each agree that, if it
is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than ten (10) Business Days subsequent to its receipt of the
notice of termination) provide the Trustee with all documents and records,
including those in electronic form, requested thereby to enable the Trustee to
assume the Master Servicer's or Special
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Servicer's, as the case may be, functions hereunder, and shall cooperate with
the Trustee in effecting the termination of the Master Servicer's or Special
Servicer's, as the case may be, responsibilities and rights hereunder, including
(i) if the Master Servicer is the Defaulting Party, the immediate transfer to
the Trustee or a successor Master Servicer for administration by it of all cash
amounts that shall at the time be or should have been credited by the Master
Servicer to a Custodial Account, the Collection Account, the Defeasance Deposit
Account, a Servicing Account or a Reserve Account or that are thereafter
received by or on behalf of it with respect to any Mortgage Loan or REO Property
or (ii) if the Special Servicer is the Defaulting Party, the transfer within two
(2) Business Days to the Trustee or a successor Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to an REO Account, a Custodial
Account, a Servicing Account or a Reserve Account or should have been delivered
to the Master Servicer or that are thereafter received by or on behalf of it
with respect to any Mortgage Loan or REO Property; provided, however, that the
Master Servicer and the Special Servicer each shall, if terminated pursuant to
this Section 7.01(b), continue to be entitled to receive all amounts accrued or
owing to it under this Agreement on or prior to the date of such termination,
whether in respect of Advances or otherwise, and it shall continue to be
entitled to the benefits of Section 6.03 (and, in the case of the initial Master
Servicer, the right to receive the Excess Servicing Strip, subject to reduction
thereof in accordance with Section 3.11(a)) notwithstanding any such
termination. Any cost or expenses in connection with any actions to be taken by
any party hereto pursuant to this paragraph shall be borne by the Defaulting
Party and if not paid by the Defaulting Party within 90 days after the
presentation of reasonable documentation of such costs and expenses, such
expense shall be reimbursed by the Trust Fund; provided, however, that the
Defaulting Party shall not thereby be relieved of its liability for such
expenses. For purposes of this Section 7.01 and also for purposes of Section
7.03(b), the Trustee shall not be deemed to have knowledge of an event which
constitutes, or which with the passage of time or notice, or both, would
constitute an Event of Default unless a Responsible Officer of the Trustee
assigned to and working in the Trustee's Corporate Trust Office has actual
knowledge thereof or unless notice of any event which is in fact such an Event
of Default is received by the Trustee and such notice references the
Certificates, the Trust Fund or this Agreement.
(c) Notwithstanding Section 7.01(b) and Section 7.04, if any Event of
Default on the part of the Master Servicer occurs that: (1) affects a Serviced
Non-Trust Mortgage Loan Noteholder or any class of related Pari Passu Non-Trust
Mortgage Loan Securities, and the Master Servicer is not otherwise terminated in
accordance with Section 7.01(b), then the Master Servicer may not be terminated
by or at the direction of the related Serviced Non-Trust Mortgage Loan
Noteholder, or (2) affects solely a Serviced Non-Trust Mortgage Loan Noteholder
or any class of related Pari Passu Non-Trust Mortgage Loan Securities, then the
Master Servicer may not be terminated by the Trustee; provided, however, in the
case of (1) or (2), at the request of such affected Serviced Non-Trust Mortgage
Loan Noteholder, the Trustee shall require the Master Servicer to appoint,
within 30 days of the Trustee's request, a Sub-Servicer (or, if the related
Serviced Loan Combination is currently being sub-serviced, to replace, within 30
days of the Trustee's request, the then-current Sub-Servicer with a new
Sub-Servicer) with respect to the related Serviced Loan Combination. In
connection with the Master Servicer's appointment of a Sub-Servicer at the
request of the Trustee in accordance with this Section 7.01(c), the Master
Servicer shall obtain, at its own expense, written confirmation from each Rating
Agency (and, if applicable, Fitch) that such appointment will not result in an
Adverse Rating Event with respect to any Class of Certificates or, if the 000
Xxxxx Xxxxxx Loan Pair or the Somerset Collection Loan Group is involved, any
class of related Pari Passu Non-Trust Mortgage Loan Securities rated by such
Rating Agency (or, if applicable, Fitch). The related Sub-Servicing Agreement
shall provide that
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any Sub-Servicer appointed by the Master Servicer at the request of the Trustee
in accordance with this Section 7.01(c) shall be responsible for all duties, and
shall be entitled to all compensation, of the Master Servicer under this
Agreement with respect to the subject Serviced Loan Combination, except that the
initial Master Servicer shall be entitled to retain the portion of the related
Master Servicing Fee that constitutes part of the Excess Servicing Strip
(subject to reduction thereof in accordance with Section 3.11(a)). Such
Sub-Servicing Agreement shall also provide that such Sub-Servicer shall agree to
become the master servicer under a separate servicing agreement (as contemplated
by the related Co-Lender Agreement) in the event that the subject Serviced Loan
Combination is no longer to be serviced and administered hereunder, which
separate servicing agreement shall contain servicing and administration,
limitation of liability, indemnification and servicing compensation provisions
substantially similar to the corresponding provisions of this Agreement, except
for the fact that the subject Serviced Loan Combination and the related
Mortgaged Property shall be the sole assets serviced and administered thereunder
and the sole source of funds thereunder. If any Sub-Servicer appointed by the
Master Servicer at the request of the Trustee in accordance with this Section
7.01(c) shall at any time resign or be terminated, the Master Servicer shall be
required to promptly appoint a substitute Sub-Servicer, which appointment shall
not result in an Adverse Rating Event with respect to any Class of Certificates
or, if the 000 Xxxxx Xxxxxx Loan Pair or the Somerset Collection Loan Group is
involved, any class of related Pari Passu Non-Trust Mortgage Loan Securities
rated by either Rating Agency (or, if applicable, Fitch) (as evidenced in a
writing obtained by the Master Servicer, at its own expense, from each Rating
Agency (and, if applicable, Fitch)). In the event that a successor Master
Servicer is acting hereunder and that successor Master Servicer desires to
terminate the Sub-Servicer appointed under this Section 7.01(c), the terminated
Master Servicer that was responsible for the Event of Default that led to the
appointment of such Sub-Servicer shall be responsible for all costs incurred in
connection with such termination, including the payment of any termination fee.
Further notwithstanding Section 7.01(b) and Section 7.04, if any Event
of Default on the part of the Special Servicer occurs that affects a Serviced
Non-Trust Mortgage Loan Noteholder, and the Special Servicer is not otherwise
terminated in accordance with Section 7.01(b), then such Serviced Non-Trust
Mortgage Loan Noteholder may require the Trustee to terminate the duties and
obligations of the Special Servicer with respect to the related Serviced Loan
Combination only, but as to no other Serviced Mortgage Loan; and, in such event,
subject to any applicable consultation rights of any particular related Serviced
Non-Trust Mortgage Loan Noteholder under the related Co-Lender Agreement, the
Controlling Class Representative shall appoint in accordance with Section 6.09
(or, in the event of the failure of the Controlling Class Representative to so
appoint, the Trustee shall appoint in accordance with Section 7.02), within 30
days of such Serviced Non-Trust Mortgage Loan Noteholder's request, a
replacement special servicer with respect to the subject Serviced Loan
Combination. In connection with the appointment of a replacement special
servicer with respect to the subject Serviced Loan Combination at the request of
a related Non-Trust Mortgage Loan Noteholder in accordance with this Section
7.01(c), the Trustee shall obtain written confirmation from each Rating Agency
(and, if applicable, Fitch) that such appointment will not result in an Adverse
Rating Event with respect to any Class of Certificates or, if the 000 Xxxxx
Xxxxxx Loan Pair or the Somerset Collection Loan Group is involved, any class of
related Pari Passu Non-Trust Mortgage Loan Securities rated by such Rating
Agency (or, if applicable, Fitch) (such rating confirmation to be an expense of
the terminated Special Servicer or, if not paid thereby, an expense of the
requesting Serviced Non-Trust Mortgage Loan Noteholder). Any replacement special
servicer appointed at the request of a Serviced Non-Trust Mortgage Loan
Noteholder in accordance with this Section 7.01(c) shall be responsible for all
duties, and shall be entitled to all compensation, of the Special Servicer under
this Agreement with respect to
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the subject Serviced Loan Combination. Any replacement special servicer
appointed at the request of a Serviced Non-Trust Mortgage Loan Noteholder in
accordance with this Section 7.01(c) hereby agrees to become, upon request, the
special servicer under a separate servicing agreement (as contemplated by the
related Co-Lender Agreement) in the event that the subject Serviced Loan
Combination is no longer to be serviced and administered hereunder, which
separate servicing agreement shall contain servicing and administration,
limitation of liability, indemnification and servicing compensation provisions
substantially similar to the corresponding provisions of this Agreement, except
for the fact that the subject Serviced Loan Combination and the related
Mortgaged Property shall be the sole assets serviced and administered thereunder
and the sole source of funds thereunder. If any replacement special servicer
appointed at the request of a Serviced Non-Trust Mortgage Loan Noteholder in
accordance with this Section 7.01(c) shall at any time resign or be terminated,
then (subject to any applicable consultation rights of any particular related
Serviced Non-Trust Mortgage Loan Noteholder under the related Co-Lender
Agreement) the Controlling Class Representative in accordance with Section 6.09
(or the Trustee in accordance with Section 7.02, if the Controlling Class
Representative fails to do so) shall be required to promptly appoint a
substitute replacement special servicer, which appointment shall not result in
an Adverse Rating Event (as evidenced in writing by each Rating Agency (and, if
applicable, Fitch)) with respect to any Class of Certificates or, if the 000
Xxxxx Xxxxxx Loan Pair or the Somerset Collection Loan Group is involved, any
class of related Pari Passu Non-Trust Mortgage Loan Securities rated by such
Rating Agency (or, if applicable, Fitch).
If a replacement special servicer is appointed with respect to a
Serviced Loan Combination at the request of a related Serviced Non-Trust
Mortgage Loan Noteholder in accordance with this Section 7.01(c) (any such
replacement special servicer, a "Loan Combination-Specific Special Servicer"),
such that there are multiple parties acting as Special Servicer hereunder, then,
unless the context clearly requires otherwise: (i) when used in the context of
imposing duties and obligations on the Special Servicer hereunder or the
performance of such duties and obligations, the term "Special Servicer" shall
mean the related Loan Combination-Specific Special Servicer, insofar as such
duties and obligations relate to a Serviced Loan Combination as to which a Loan
Combination-Specific Special Servicer has been appointed, and shall mean the
General Special Servicer (as defined below), in all other cases (provided that,
in Section 3.13, Section 3.14 and Section 3.15, the term "Special Servicer"
shall mean each of the Loan Combination-Specific Special Servicer(s) and the
General Special Servicer); (ii) when used in the context of identifying the
recipient of any information, funds, documents, instruments and/or other items,
the term "Special Servicer" shall mean the related Loan Combination-Specific
Special Servicer, insofar as such information, funds, documents, instruments
and/or other items relate to a Serviced Loan Combination as to which a Loan
Combination-Specific Special Servicer has been appointed, and shall mean the
General Special Servicer, in all other cases; (iii) when used in the context of
granting the Special Servicer the right to purchase Defaulted Trust Mortgage
Loans pursuant to Section 3.18, the term "Special Servicer" shall mean the
related Loan Combination-Specific Special Servicer, if such Defaulted Trust
Mortgage Loan is a Serviced Combination Trust Mortgage Loan as to which a Loan
Combination-Specific Special Servicer has been appointed, and shall mean the
General Special Servicer, in all other cases; (iv) when used in the context of
granting the Special Servicer the right to purchase all of the Trust Mortgage
Loans and any REO Properties remaining in the Trust Fund pursuant to Section
9.01, the term "Special Servicer" shall mean the General Special Servicer only;
(v) when used in the context of the Special Servicer being replaced, pursuant to
Section 6.09, by the Majority Controlling Class Certificateholder(s), the term
"Special Servicer" shall mean the General Special Servicer or any Loan
Combination-Specific Special Servicer, as applicable (provided that no Loan
Combination-Specific Special Servicer can be replaced by a Person that itself
had been replaced,
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pursuant to this Section 7.01(c), as the Special Servicer with respect to the
subject Loan Combination); (vi) when used in the context of granting the Special
Servicer any protections, limitations on liability, immunities and/or
indemnities hereunder, the term "Special Servicer" shall mean each of the Loan
Combination-Specific Special Servicer(s) and the General Special Servicer; and
(vii) when used in the context of requiring indemnification from, imposing
liability on, or exercising any remedies against, the Special Servicer for any
breach of a representation, warranty or covenant hereunder or for any
negligence, bad faith or willful misconduct in the performance of duties and
obligations hereunder or any negligent disregard of such duties and obligations
or otherwise holding the Special Servicer responsible for any of the foregoing,
the term "Special Servicer" shall mean the related Loan Combination-Specific
Special Servicer or the General Special Servicer, as applicable. References in
this Section 7.01(c) to "General Special Servicer" means the Person performing
the duties and obligations of special servicer with respect to the Mortgage Pool
(exclusive of each Serviced Loan Combination as to which a Loan
Combination-Specific Special Servicer has been appointed).
In no event shall any waiver of an Event of Default pursuant to
Section 7.04 affect the rights of any Serviced Non-Trust Mortgage Loan
Noteholder under this Section 7.01(c).
(d) Pursuant to the terms of the GIC Office Servicing Agreement, if a
GIC Office Event of Default has occurred with respect to the GIC Office Master
Servicer or the GIC Office Special Servicer under the GIC Office Servicing
Agreement and remains unremedied, then the Trustee may, if materially and
adversely affected in its capacity as holder of the GIC Office Trust Mortgage
Loan or any GIC Office REO Trust Mortgage Loan, to the fullest extent permitted
by the GIC Office Servicing Agreement, either (i) waive such GIC Office Event of
Default (but only if directed to do so in accordance with Section 7.04), or (ii)
direct the appropriate party under the GIC Office Servicing Agreement to require
the appointment of a sub-servicer to perform the duties of the defaulting GIC
Office Servicer with respect to the GIC Office Loan Group or any related REO
Property or, alternatively, to terminate the defaulting GIC Office Servicer and
appoint a successor thereto with respect to the GIC Office Loan Group or any
related REO Property. In such event, the Trustee may (and, at the direction of
the Controlling Class Representative or the Holders of Certificates entitled to
at least 25% of the Voting Rights, is required to) exercise the rights set forth
in clause (ii) of the preceding sentence as the holder of the GIC Office Trust
Mortgage Loan or any GIC Office REO Trust Mortgage Loan.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless and until a successor is appointed
pursuant to Section 6.04, Section 6.09 or Section 7.01(c), be the successor in
all respects to the Master Servicer or the Special Servicer, as the case may be,
in its capacity as such under this Agreement and the transactions set forth or
provided for herein and shall have all (and the former Master Servicer or the
Special Servicer, as the case may be, shall cease to have any) of the
responsibilities, duties and liabilities of the Master Servicer or the Special
Servicer, as the case may be, arising thereafter, including, if the Master
Servicer is the resigning or terminated party, the Master Servicer's obligation
to make P&I Advances, including in connection with any termination of the Master
Servicer for an Event of Default described in clause 7.01(a)(iii), the unmade
P&I Advances that gave rise to such Event of Default; provided that any failure
to perform such duties or responsibilities caused by the Master Servicer's or
the Special Servicer's, as the case may be, failure to provide
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information or monies required by Section 7.01 shall not be considered a default
by the Trustee hereunder. The Trustee shall not be liable for any of the
representations and warranties of the resigning or terminated party or for any
losses incurred by the resigning or terminated party pursuant to Section 3.06
hereunder nor shall the Trustee be required to purchase any Mortgage Loan
hereunder. As compensation therefor, the Trustee shall be entitled to all fees
and other compensation which the resigning or terminated party would have been
entitled to if the resigning or terminated party had continued to act hereunder
(subject to Section 3.11(a) with respect to the Excess Servicing Strip).
Notwithstanding the above, the Trustee may, if it shall be unwilling to so act
as either Master Servicer or Special Servicer, as the case may be, or shall, if
it is unable to so act as either Master Servicer or Special Servicer, as the
case may be, or if the Trustee is not approved as a master servicer or a special
servicer, as the case may be, by any of the Rating Agencies, or if the Holders
of Certificates entitled to a majority of the Voting Rights so request in
writing to the Trustee, promptly appoint (subject, in the case of a resigning or
terminated Special Servicer, to any applicable non-binding consultation rights
of particular Serviced Non-Trust Mortgage Loan Noteholders under the related
Co-Lender Agreement), or petition a court of competent jurisdiction to appoint,
any established mortgage loan servicing institution as the successor to the
resigning or terminated Master Servicer or the Special Servicer, as the case may
be, hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the resigning or terminated Master Servicer or the
Special Servicer, as the case may be, hereunder; provided, however, that no such
appointee shall succeed to the rights and obligations of the Master Servicer or
Special Servicer hereunder unless (i) as confirmed in writing by each Rating
Agency, such succession will not result in an Adverse Rating Event with respect
to any Class of Certificates or any class of Pari Passu Non-Trust Mortgage Loan
Securities rated by such Rating Agency, and (ii) such appointee makes the
applicable representations and warranties set forth in Section 3.23; and
provided, further, that in the case of a resigning or terminated Special
Servicer, such appointment shall be subject to the rights of the Majority
Controlling Class Certificateholder(s) to designate a successor pursuant to
Section 6.09. No appointment of a successor to the Master Servicer or the
Special Servicer hereunder shall be effective until the assumption by the
successor to such party of all its responsibilities, duties and liabilities
under this Agreement. Pending appointment of a successor to the Master Servicer
or the Special Servicer hereunder, the Trustee shall act in such capacity as
hereinabove provided. In connection with any such appointment and assumption
described herein, the Trustee may (subject to Section 3.11(a) with respect to
the Excess Servicing Strip) make such arrangements for the compensation of such
successor out of payments on the Serviced Mortgage Loans and the Administered
REO Properties as it and such successor shall agree, subject to the terms of
this Agreement and/or the related Co-Lender Agreement limiting the use of funds
received in respect of a Serviced Loan Combination to matters related to such
Loan Combination; provided, however, that no such compensation shall be in
excess of that permitted the resigning or terminated party hereunder. Such
successor and the other parties hereto shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register and to each
Serviced Non-Trust Mortgage Loan Noteholder.
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(b) Not later than 10 days after a Responsible Officer of the Trustee
has notice of the occurrence of any event which constitutes or, with notice or
lapse of time or both, would constitute an Event of Default or GIC Office Event
of Default, the Trustee shall transmit by mail to the Depositor, all the
Certificateholders and the Rating Agencies notice of such occurrence, unless
such default shall have been cured.
SECTION 7.04. Waiver of Events of Default and GIC Office Events of
Default.
The Holders representing at least 66-2/3% of the Voting Rights
allocated to each Class of Certificates affected by any Event of Default
hereunder or any GIC Office Event of Default under the GIC Office Servicing
Agreement may waive such Event of Default or, to the extent it is permitted to
do so under the GIC Office Servicing Agreement, such GIC Office Event of
Default, as the case may be; provided, however, that an Event of Default under
any of clauses (i), (ii), (iii), (x) and (xi) of Section 7.01(a) or any
comparable GIC Office Event of Default may be waived only by all of the
Certificateholders of the affected Classes. Upon any such waiver of an Event of
Default or GIC Office Event of Default, such Event of Default or, to the extent
it is permitted to do so under the GIC Office Servicing Agreement, such GIC
Office Event of Default, as the case may be, shall cease to exist and shall be
deemed to have been remedied for every purpose hereunder (except as otherwise
provided in Section 7.01(c)). No such waiver shall extend to any subsequent or
other Event of Default or GIC Office Event of Default, as the case may be, 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 or GIC Office Event of Default pursuant to this Section
7.04, Certificates registered in the name of the Depositor or any Affiliate of
the Depositor shall be entitled to Voting Rights with respect to the matters
described above.
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default or
a GIC Office Event of Default.
During the continuance of any Event of Default or GIC Office Event of
Default, so long as such Event of Default or GIC Office Event of Default shall
not have been remedied, the Trustee, in addition to the rights specified in
Section 7.01, shall have the right, in its own name and as trustee of an express
trust and on behalf of any Serviced Non-Trust Mortgage Loan Noteholder, to take
all actions now or hereafter existing at law, in equity or by statute to enforce
its rights and remedies and to protect the interests, and enforce the rights and
remedies, of the Certificateholders and the Serviced Non-Trust Mortgage Loan
Noteholders (including the institution and prosecution of all judicial,
administrative and other proceedings and the filings of proofs of claim and debt
in connection therewith). Except as otherwise expressly provided in this
Agreement, no remedy provided for by this Agreement shall be exclusive of any
other remedy, and each and every remedy shall be cumulative and in addition to
any other remedy, and no delay or omission to exercise any right or remedy shall
impair any such right or remedy or shall be deemed to be a waiver of any Event
of Default or GIC Office Event of Default, as the case may be.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default or a
GIC Office Event of Default and after the curing or waiver of all Events of
Default and GIC Office 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 or a GIC Office Event of Default occurs and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Agreement, and use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs; provided that if the Trustee is acting as Master
Servicer or Special Servicer, it shall act in accordance with the Servicing
Standard. 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 take such action as it deems appropriate to
have the instrument corrected. 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, the Master
Servicer or the Special Servicer, 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 misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default or a GIC
Office Event of Default, and after the curing of all such Events of Default
and or GIC Office 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 personally 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;
(iii) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with the terms of this
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Agreement and the direction of the Controlling Class or 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 or, as holder of the GIC Office Trust
Mortgage Loan or any GIC Office REO Trust Mortgage Loan, under the GIC
Office Co-Lender Agreement or the GIC Office Servicing Agreement; and
(iv) The protections, immunities and indemnities afforded to the
Trustee hereunder shall also be available to it in its capacity as
Authenticating Agent, Certificate Registrar, Tax Administrator and
Custodian.
SECTION 8.02. Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
(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 be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or, except as provided in
Section 10.01 or 10.02, to institute, conduct or defend any litigation
hereunder or in relation hereto, at the request, order or direction of any
of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby; except as provided in Section 10.01 or
10.02, 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 or a GIC Office
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 personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
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(v) prior to the occurrence of an Event of Default or a GIC
Office Event of Default hereunder and after the curing of all Events of
Default and GIC Office Events of Default which may have occurred, and
except as may be provided in Section 10.01 or 10.02, 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 25% of the Voting Rights; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such expense or liability as a
condition to taking any such action;
(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 Trustee shall remain
responsible for all acts and omissions of such agents or attorneys within
the scope of their employment to the same extent as it is responsible for
its own actions and omissions hereunder; and
(vii) the Trustee shall not be responsible for any act or
omission of the Master Servicer or the Special Servicer (unless the Trustee
is acting as Master Servicer or the Special Servicer) or the Depositor.
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than the
statements attributed to the Trustee and any Fiscal Agent in Article II and
Section 8.16 and Section 8.18 and the signature of the Certificate Registrar and
the Authenticating Agent set forth on each outstanding Certificate, shall not be
taken as the statements of the Trustee or any Fiscal Agent, and neither the
Trustee nor any Fiscal Agent shall assume any responsibility for their
correctness. Except as expressly set forth in Section 8.16 and 8.18, the Trustee
and any Fiscal Agent make no representations as to the validity or sufficiency
of this Agreement or of any Certificate (other than as to the signature of the
Trustee set forth thereon) or of any Mortgage Loan or related document. The
Trustee and any Fiscal Agent 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 Trust Mortgage Loans to the Trust
Fund, or any funds deposited in or withdrawn from a Custodial Account or any
other account by or on behalf of the Depositor, the Master Servicer or the
Special Servicer. The Trustee and any Fiscal Agent shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor, the
Master Servicer or the Special Servicer, and accepted by the Trustee in good
faith, pursuant to this Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee, any Fiscal Agent or any agent of the Trustee or any
Fiscal Agent, in its individual or any other capacity, may become the owner or
pledgee of Certificates with (except as otherwise provided in the definition of
"Certificateholder") the same rights it would have if it were not the Trustee,
such Fiscal Agent or such agent, as the case may be.
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SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by
Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the
general funds on deposit in the Collection Account, prior to any distributions
to be made therefrom on such date, and pay to itself the Trustee Fee for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, as compensation for all services rendered by the Trustee in
the execution of the trusts hereby created and in the exercise and performance
of any of the powers and duties of the Trustee hereunder. The Trustee Fees
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) shall constitute the Trustee's
sole compensation for such services to be rendered by it.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to be indemnified for and held harmless by the Trust
Fund out of the Pool Custodial Account and the Collection Account (and, to the
extent that a Serviced Loan Combination or any related REO Property is affected,
by the Trust Fund and/or the related Serviced Non-Trust Mortgage Loan
Noteholder(s) out of the related Loan Combination Custodial Account) against any
loss, liability or reasonable "out-of-pocket" expense (including costs and
expenses incurred in connection with removal of the Special Servicer and Master
Servicer pursuant to Sections 7.01 and 7.02, costs and expenses of litigation,
and of investigation, counsel fees, damages, judgments and amounts paid in
settlement) arising out of, or incurred in connection with, this Agreement or
the Certificates ("Trustee Liability"); provided that such loss, liability or
expense constitutes an "unanticipated expense" within the meaning of Treasury
regulations section 1.860G-1(b)(3)(ii); and provided, further, that neither the
Trustee nor any of the other above specified Persons shall be entitled to
indemnification pursuant to this Section 8.05(b) for (1) any liability
specifically required to be borne thereby pursuant to the terms of this
Agreement, or (2) any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of, or the negligent
disregard of, the Trustee's obligations and duties hereunder, or as may arise
from a breach of any representation, warranty or covenant of the Trustee made
herein, or (3) any loss, liability or expense that constitutes allocable
overhead. The provisions of this Section 8.05(b) and of Section 8.05(c) shall
survive any resignation or removal of the Trustee and appointment of a successor
trustee.
(c) If the Trustee Liability arises from the issuance or sale of the
Certificates and the indemnification provided for in Section 8.05(b) is invalid
or unenforceable, then the Trust Fund shall contribute to the amount paid or
payable by the Trustee as a result of such Trustee Liability in such proportion
as is appropriate to reflect the relative fault of any of the other parties on
the one hand and the Trustee on the other in connection with the actions or
omissions which resulted in such Trustee Liability, as well as any other
relevant equitable considerations.
(d) The Trustee shall indemnify and hold harmless the Trust Fund
against any losses arising out of any errors made solely by the Trustee in
calculating distributions to be made hereunder and any other calculation or
reporting hereunder (in each case not attributable to information provided to
the Trustee by the Master Servicer or the Special Servicer); provided that such
loss arose by reason of willful misfeasance, bad faith or negligence on the part
of the Trustee. The provisions of this Section 8.05(d) shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
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SECTION 8.06. Eligibility Requirements for Trustee.
(a) The Trustee hereunder shall at all times be a bank, a trust
company, an association or a corporation organized and doing business under the
laws of the United States of America or any state thereof or the District of
Columbia, authorized under such laws to exercise trust powers, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state banking authority. If such bank, trust company,
association or corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this section the combined capital and
surplus of such bank, trust company, association or corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. The Trustee shall at all times maintain a long-term
unsecured debt rating of at least (a) "AA-" from S&P (or "A+" from S&P, if the
Trustee's short-term unsecured debt rating is at least "A-1" by S&P) and "Aa3"
from Xxxxx'x, or (b) in the case of either Rating Agency, (i) "A-" from S&P and
"A3" from Xxxxx'x, if a Fiscal Agent meeting the requirements of Section 8.17(a)
is then currently acting in such capacity, or (ii) such other rating as shall
not result in an Adverse Rating Event with respect to any Class of Certificates,
as confirmed in writing by such Rating Agency. The Trustee's acting in such
capacity shall not adversely affect the application of the Prohibited
Transaction Exemption to the Investment Grade Certificates. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.07; provided that if the Trustee shall cease to be so
eligible because its combined capital and surplus is no longer at least
$50,000,000 or its long-term unsecured debt rating no longer conforms to the
requirements of the immediately preceding sentence, and if the Trustee proposes
to the other parties hereto to enter into an agreement with (and reasonably
acceptable to) each of them, and if in light of such agreement the Trustee's
continuing to act in such capacity would not (as evidenced in writing by each
Rating Agency) cause an Adverse Rating Event with respect to any Class of
Certificates, then upon the execution and delivery of such agreement the Trustee
shall not be required to resign, and may continue in such capacity, for so long
as none of the ratings assigned by the Rating Agencies to the Certificates is
adversely affected thereby. The bank, trust company, corporation or association
serving as Trustee may have normal banking and trust relationships with the
Depositor, the Master Servicer, the Special Servicer and their respective
Affiliates.
SECTION 8.07. Resignation and Removal of 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, the
Master Servicer, the Special Servicer, all Certificateholders and all Serviced
Non-Trust Mortgage Loan Noteholders. Upon receiving such notice of resignation,
the Depositor shall promptly appoint a successor trustee acceptable to the
Depositor by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee and to the successor trustee. A copy of such
instrument shall be delivered to the Master Servicer, the Special Servicer, the
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders 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 if at
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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 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 deliver or otherwise make available in accordance
with this Agreement any current or revised Distribution Date Statement, CMSA
Loan Periodic Update File, CMSA Property File, CMSA Financial File or other
report or statement required by Section 4.02 and such failure shall continue
unremedied for a period of five days after receipt of written notice by the
Trustee of such failure, or if a tax is imposed or threatened with respect to
the Trust Fund by any state in which the Trustee is located or in which it holds
any portion of the Trust Fund, then the Depositor may remove the Trustee and
appoint a successor trustee acceptable to the Depositor and the Master Servicer
by written instrument, in duplicate, which instrument shall be delivered to the
Trustee so removed and to the successor trustee. A copy of such instrument shall
be delivered to the Master Servicer, the Special Servicer, the
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders by the
successor trustee so appointed.
(c) The Holders of Certificates entitled to 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to the
Master Servicer, one complete set to the Trustee so removed and one complete set
to the successor trustee so appointed. A copy of such instrument shall be
delivered to the Depositor, the Special Servicer, the remaining
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders by the
successor trustee so appointed.
(d) In the event that the Trustee is terminated or removed pursuant to
this Section 8.07, all of its and any corresponding Fiscal Agent's rights and
obligations under this Agreement and in and to the Trust Mortgage Loans and the
Serviced Non-Trust Mortgage Loans shall be terminated, other than any rights or
obligations that accrued prior to the date of such termination or removal
(including the right to receive all fees, expenses and other amounts (including
P&I Advances and any accrued interest thereon) accrued or owing to it under this
Agreement, with respect to periods prior to the date of such termination or
removal, and no termination without cause shall be effective until the payment
of such amounts to the Trustee and such Fiscal Agent).
(e) 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.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor, the Master Servicer, the
Special Servicer and to the 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 (at the expense of the Certificateholders
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that effected the removal, if the Trustee has been removed in accordance with
Section 8.07(c) without cause or if such expenses are not paid by such
Certificateholders within ninety (90) days after they are incurred, at the
expense of the Trust, provided that such Certificateholders shall remain liable
to the Trust for such expenses) all Mortgage Files and related documents and
statements held by it hereunder (other than any Mortgage Files at the time held
on its behalf by a third-party Custodian, which Custodian shall become the agent
of the successor trustee), and the Depositor, the Master Servicer, the Special
Servicer and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required to more fully and
certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations, and to enable the successor trustee to perform its
obligations hereunder.
(b) No successor trustee 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, such successor trustee shall mail notice of the succession
of such trustee hereunder to the Depositor, the Master Servicer, the Special
Servicer, the Certificateholders and the Serviced Non-Trust Mortgage Loan
Noteholders.
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal Agent.
Any entity into which the Trustee or any Fiscal Agent may be merged or
converted, or with which the Trustee or any Fiscal Agent may be consolidated, or
any entity resulting from any merger, conversion or consolidation to which the
Trustee or any Fiscal Agent shall be a party, or any entity succeeding to the
corporate trust business of the Trustee, shall be the successor of the Trustee
or such Fiscal Agent, as the case may be, hereunder, provided such entity shall
be eligible under the provisions of Section 8.06 or Section 8.17, as applicable,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
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.
(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
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acts are to be performed (whether as Trustee hereunder or as successor to the
Master Servicer or the Special Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust Fund or any portion thereof in any such jurisdiction) shall be exercised
and performed by such separate trustee or co-trustee at the direction of the
Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts vested therein pursuant to
the applicable instrument of appointment and this Section 8.10, shall vest in
and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
any Mortgage Loan Seller or any Affiliate of any of them. Neither the Master
Servicer nor the Special Servicer shall have any duty to verify that any such
Custodian is qualified to act as such in accordance with the preceding sentence.
The Trustee may enter into agreements to appoint a Custodian which is not the
Trustee, provided that such agreement: (i) is consistent with this Agreement in
all material respects and requires the Custodian to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Trustee shall
for any reason no longer act in the capacity of Trustee hereunder, the successor
Trustee or its designee may thereupon assume all of the rights and, except to
the extent they arose prior to the date of assumption, obligations of the
Custodian under such agreement or, alternatively, may terminate such agreement
without cause and without payment of any penalty or termination fee; and (iii)
may provide that the related Custodian will be entitled to be indemnified out of
the assets of the Trust Fund in connection with losses arising from the
performance by such Custodian of its duties in accordance with the provisions of
the related custodial agreement if and to the extent such indemnification would
be permitted under Section 8.05(b) with respect to agents of the Trustee. The
appointment of one or more Custodians shall not relieve the
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Trustee from any of its obligations hereunder, and the Trustee shall remain
responsible for all acts and omissions of any Custodian. In the absence of any
other Person appointed in accordance herewith acting as Custodian, the Trustee
agrees to act in such capacity in accordance with the terms hereof.
Notwithstanding anything herein to the contrary, if the Trustee is no longer the
Custodian, any provision or requirement herein requiring notice or any
information or documentation to be provided to the Custodian shall be construed
to require that such notice, information or documents also be provided to the
Trustee. Any Custodian hereunder shall at all times maintain a fidelity bond and
errors and omissions policy in amounts customary for custodians performing
duties similar to those set forth in this Agreement and, in any event,
satisfying the same requirements (including as to the insurer) as are applicable
to any such bond or policy required to be maintained by the Master Servicer
pursuant to Section 3.07. Any engagement of a third party to act as Custodian
with respect to the Mortgage File or any portion thereof with respect to a
Serviced Loan Combination shall be subject to any relevant provisions of the
related Co-Lender Agreement.
SECTION 8.12. Appointment of Authenticating Agents.
(a) The Trustee may appoint at the Trustee's expense an Authenticating
Agent, which shall be authorized to act on behalf of the Trustee in
authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the Trustee an instrument in which such
Authenticating Agent shall agree to act in such capacity, with the obligations
and responsibilities herein. Each Authenticating Agent must be organized and
doing business under the laws of the United States of America or of any State,
authorized under such laws to carry on a trust business, have a combined capital
and surplus of at least $15,000,000, and be subject to supervision or
examination by federal or state authorities. Each Authenticating Agent shall be
subject to the same obligations, standard of care, protection and indemnities as
would be imposed on, or would protect, the Trustee hereunder. The appointment of
an Authenticating Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible for all acts and
omissions of the Authenticating Agent. In the absence of any other Person
appointed in accordance herewith acting as Authenticating Agent, the Trustee
hereby agrees to act in such capacity in accordance with the terms hereof.
Notwithstanding anything herein to the contrary, if the Trustee is no longer the
Authenticating Agent, any provision or requirement herein requiring notice or
any information or documentation to be provided to the Authenticating Agent
shall be construed to require that such notice, information or documentation
also be provided to the Trustee.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent appointed in accordance with this Section
8.12 may at any time resign by giving at least 30 days' advance written notice
of resignation to the Trustee, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent appointed in accordance with this Section 8.12 by giving
written notice of termination to such Authenticating Agent, the Master Servicer
and the Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any
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Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 8.12, the Trustee may appoint a successor
Authenticating Agent, in which case the Trustee shall give written notice of
such appointment to the Master Servicer, the Certificate Registrar and the
Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.12. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent.
SECTION 8.13. Appointment of Tax Administrators.
(a) The Trustee may appoint at the Trustee's expense any Person with
appropriate tax-related experience to act as Tax Administrator hereunder;
provided that, in the absence of any other Person appointed in accordance
herewith acting as Tax Administrator, the Trustee agrees to act in such capacity
in accordance with the terms hereof. The appointment of a Tax Administrator
shall not relieve the Trustee from any of its obligations hereunder, and the
Trustee shall remain responsible for all acts and omissions of the Tax
Administrator. The Trustee shall cause any such Tax Administrator appointed by
it to execute and deliver to the Trustee an instrument in which such Tax
Administrator shall agree to act in such capacity, with the obligations and
responsibilities herein.
(b) Any Person into which any Tax 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 Tax Administrator shall be a
party, or any Person succeeding to the corporate agency business of any Tax
Administrator, shall continue to be the Tax Administrator without the execution
or filing of any paper or any further act on the part of the Trustee or the Tax
Administrator.
(c) Any Tax Administrator appointed in accordance with this Section
8.13 may at any time resign by giving at least 30 days' advance written notice
of resignation to the Trustee, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any Tax
Administrator appointed in accordance with this Section 8.13 by giving written
notice of termination to such Tax Administrator, the Master Servicer, and the
Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any Tax Administrator shall cease to be
eligible in accordance with the provisions of this Section 8.13, the Trustee may
appoint a successor Tax Administrator, in which case the Trustee shall give
written notice of such appointment to the Master Servicer, the Special Servicer
and the Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Tax Administrator shall be
appointed unless eligible under the provisions of this Section 8.13. Any
successor Tax 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 Tax
Administrator.
SECTION 8.14. Access to Certain Information.
(a) The Trustee shall afford to the Master Servicer, the Special
Servicer and the Depositor, and to the OTS, the FDIC and any other banking or
insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner, access to any documentation regarding
the Trust Mortgage Loans within its control that may be required to be provided
by this
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Agreement or by applicable law. Such access shall be afforded without charge but
only upon reasonable prior written request and during normal business hours at
the offices of the Trustee designated by it.
(b) The Trustee shall maintain in its possession and, upon reasonable
prior written request and during normal business hours, shall make available at
its offices for review by the Depositor, the Rating Agencies, the Serviced
Non-Trust Mortgage Loan Noteholders and their respective designees, the
Controlling Class Representative and, subject to the succeeding paragraph, any
Certificateholder, Certificate Owner or Person identified to the Trustee as a
prospective Transferee of a Certificate or an interest therein, originals and/or
copies of the following items: (i) the Prospectus, any private placement
memorandum and any other disclosure document relating to the Certificates, in
the form most recently provided to the Trustee by the Depositor or by any Person
designated by the Depositor; (ii) this Agreement, each Sub-Servicing Agreement
delivered to the Trustee since the Closing Date and any amendments hereto or
thereto; (iii) all Certificateholder Reports made available to
Certificateholders pursuant to Section 4.02(a) since the Closing Date; (iv) all
Annual Performance Certifications delivered by the Master Servicer and the
Special Servicer, respectively, to the Trustee since the Closing Date; (v) all
Annual Accountants' Reports caused to be delivered by or on behalf of the Master
Servicer and the Special Servicer, respectively, to the Trustee since the
Closing Date; (vi) any and all notices and reports delivered to the Trustee with
respect to any Mortgaged Property 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; (vii)
each of the Mortgage Files, including any and all modifications, extensions,
waivers and amendments of the terms of a Trust Mortgage Loan or Serviced
Non-Trust Mortgage Loan entered into or consented to by the Special Servicer and
delivered to the Trustee pursuant to Section 3.20; (viii) the most recent
appraisal for each Mortgaged Property and REO Property that has been delivered
to the Trustee (each appraisal obtained hereunder with respect to any Mortgaged
Property or REO Property to be delivered to the Trustee by the Master Servicer
or Special Servicer, as applicable, promptly following its having been
obtained); (ix) any and all Officer's Certificates and other evidence delivered
to or by the Trustee to support its, the Master Servicer's, the Special
Servicer's or any Fiscal Agent's, as the case may be, determination that any
Advance was (or, if made, would be) a Nonrecoverable Advance; (x) any and all
information provided to the Trustee pursuant to Section 6.11(a), Section
6.12(a), Section 6.13(a), Section 6.14(c) or Section 6.15(a); (xi) any exception
report prepared by the Trustee pursuant to Section 2.02(b); (xii) all notices of
a breach of representation and warranty given by or received by the Trustee with
respect to any party hereto; and (xiii) any Officer's Certificate delivered to
the Trustee by the Special Servicer in connection with a Final Recovery
Determination pursuant to Section 3.09(h); and (xiv) any and all reports,
statements and other written or electronic information relating to the GIC
Office Trust Mortgage Loan, the GIC Office Mortgaged Properties and/or the
borrower under the GIC Office Trust Mortgage Loan, to the extent such items were
received by the Master Servicer from the GIC Office Master Servicer or the GIC
Office Trustee and delivered to the Trustee since the Closing Date. The Trustee
shall provide copies of any and all of the foregoing items upon written request
of any of the parties set forth in the previous sentence; however, except in the
case of the Rating Agencies, the Trustee shall be permitted to require payment
of a sum sufficient to cover the reasonable costs and expenses of providing such
copies. Upon the reasonable request of any Certificateholder, or any Certificate
Owner identified to the Trustee to the Trustee's reasonable satisfaction, the
Trustee shall request from the Master Servicer copies (at the expense of such
Certificateholder or Certificate Owner if the Master Servicer or Special
Servicer charges a fee to cover the reasonable cost of making such copies
available) of any inspection reports prepared by the Master Servicer or the
Special Servicer, copies of any operating statements, rent rolls and financial
statements obtained by the Master Servicer or the Special Servicer and copies of
any
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CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment Worksheets
prepared by the Master Servicer or the Special Servicer; and, upon receipt, the
Trustee shall make such items available to the requesting Certificateholder or
Certificate Owner.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Trustee shall require: (i) in the case
of Certificateholders and Certificate Owners, a written confirmation executed by
the requesting Person substantially in the form of Exhibit L-1 (or in such other
form as may be reasonably acceptable to the Trustee) generally to the effect
that such Person is a Certificateholder or a beneficial holder of Book-Entry
Certificates and will keep such information confidential (except that such
Certificateholder or Certificate Owner may provide such information to any other
Person that holds or is contemplating the purchase of any Certificate or
interest therein, provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential); and (ii) in the case of a prospective purchaser of a
Certificate or an interest therein, confirmation executed by the requesting
Person substantially in the form of Exhibit L-2 (or in such other form as may be
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 for use in evaluating a possible investment in
Certificates and will otherwise keep such information confidential.
(c) The Trustee shall not be liable for providing or disseminating
information in accordance with Section 8.14(a) or (b).
SECTION 8.15. Reports to the Securities and Exchange Commission and
Related Reports.
(a) With respect to the Trust's fiscal year 2004 (and with respect to
any subsequent fiscal year for the Trust, if as of the beginning of such
subsequent fiscal year, the Registered Certificates are held (directly or, in
the case of Registered Certificates held in book-entry form, through the
Depository) by at least 300 Holders and/or Depository Participants having
accounts with the Depository), the Trustee shall:
(i) during such fiscal year, in accordance with the Exchange Act,
the rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission, prepare for filing, execute and properly
and timely file with the Commission monthly, with respect to the Trust, a
Current Report on Form 8-K with copies of the Distribution Date Statements
(exclusive of the CMSA Bond Level File and the CMSA Collateral Summary
File) and, to the extent delivered to the Trustee, such other servicing
information identified by the Master Servicer or the Special Servicer, in
writing, to be filed with the Commission (such other servicing information,
the "Additional Designated Servicing Information");
(ii) during such fiscal year, (A) monitor for and promptly notify
the Depositor of the occurrence or existence of any of the matters
identified in Section 11.11(a) and/or Section 8.15(b) (in each case to the
extent that a Responsible Officer of the Trustee has actual knowledge
thereof), (B) cooperate with the Depositor in obtaining all necessary
information in order to prepare a Current Report on Form 8-K reporting any
such matter in accordance with the Exchange Act, the rules and regulations
promulgated thereunder and applicable "no-action letters" issued by the
Commission, and (C) prepare for filing, execute and promptly file with the
Commission a Current Report on Form 8-K disclosing any such matter;
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(iii) at the reasonable request of, and in accordance with the
reasonable directions of, the Certifying Party (as defined in Section
8.15(d)), prepare for filing, execute and promptly file with the Commission
an amendment to any Current Report on Form 8-K previously filed with the
Commission with respect to the Trust; and
(iv) within 90 days following the end of such fiscal year,
prepare and properly and timely file with the Commission, with respect to
the Trust, an Annual Report on Form 10-K, which complies in all material
respects with the requirements of the Exchange Act, the rules and
regulations promulgated thereunder and applicable "no-action letters"
issued by the Commission;
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable (or readily convertible into a format suitable) for electronic filing
via the XXXXX system and shall not have any responsibility to convert any such
items to such format (other than those items generated by it or that are readily
convertible to such format) and (y) the Depositor shall be responsible for
preparing, executing and filing (via the XXXXX system within fifteen (15) days
following the Closing Date) a Current Report on Form 8-K reporting the
establishment of the Trust and whereby this Agreement is filed as an exhibit.
Each of the other parties to this Agreement shall deliver to the Trustee in the
format required (or readily convertible into the format required) for electronic
filing via the XXXXX system, any and all items (including, in the case of the
Master Servicer and the Special Servicer, all Additional Designated Servicing
Information delivered to the Trustee) contemplated to be filed with the
Commission pursuant to this Section 8.15(a).
All Current Reports on Form 8-K and Annual Reports on Form 10-K that
are to be filed with respect to the Trust pursuant to this Section 8.15(a)
(collectively, including the exhibits thereto, the "Exchange Act Reports"),
exclusive of the initial Current Report on Form 8-K contemplated by clause (y)
of the proviso to the first sentence of the preceding paragraph, which is to be
executed by the Depositor, are (together with the exhibits thereto) herein
referred to as the "Subsequent Exchange Act Reports". The Trustee shall have no
liability to the Certificateholders or the Trust with respect to any failure to
properly prepare or file any of the Subsequent Exchange Act Reports to the
extent that such failure is not the result of any negligence, bad faith or
willful misconduct on its part.
(b) At all times during the Trust's fiscal year 2004 (and, if as of
the beginning of any other fiscal year for the Trust, the Registered
Certificates are held (directly or, in the case of Registered Certificates held
in book-entry form, through the Depository) by at least 300 Holders and/or
Depository Participants having accounts with the Depository, at all times during
such other fiscal year), the Trustee shall monitor for the occurrence or
existence of any of the following matters:
(i) any failure of the Trustee to make any monthly distributions
to the Holders of any Class of Certificates, which failure is not otherwise
reflected in the Distribution Date Statements filed with the Commission or
has not otherwise been reported to the Depositor pursuant to any other
section of this Agreement;
(ii) any acquisition or disposition by the Trust of a Trust
Mortgage Loan or an REO Property (or, in the case of any GIC Office REO
Property, any interest therein), which acquisition or disposition has not
otherwise been reflected in the Distribution Date Statements filed with the
Commission or has not otherwise been reported to the Depositor pursuant to
any other section of this Agreement;
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(iii) any other acquisition or disposition by the Trust of a
significant amount of assets (other than Permitted Investments, Trust
Mortgage Loans and REO Properties (or, in the case of any GIC Office REO
Property, any interest therein)), other than in the normal course of
business, which acquisition or disposition has not otherwise been reflected
in the Distribution Date Statements filed with the Commission or has not
otherwise been reported to the Depositor pursuant to any other section of
this Agreement;
(iv) any change in the fiscal year of the Trust;
(v) any material legal proceedings of which the Trustee has
knowledge, other than ordinary routine litigation incidental to the
business of the Trust, to which the Trust (or any party to this Agreement
on behalf of the Trust) is a party or of which any property included in the
Trust Fund is subject, or any threat by a governmental authority to bring
any such legal proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings in respect of
or pertaining to the Trust or any party to this Agreement of which the
Trustee has knowledge, or any actions by or on behalf of the Trust or any
party to this Agreement indicating its bankruptcy, insolvency or inability
to pay its obligations; and
(vii) any change in the rating or ratings assigned to any Class
of Certificates not otherwise reflected in the Distribution Date Statements
filed with the Commission;
provided that (1) the actual knowledge of a Responsible Officer of the Trustee
of any material legal proceedings of which property included in the Trust Fund
is subject or of any material legal proceedings threatened by a governmental
authority is limited (except where the Trustee received information regarding
such proceeding from the Master Servicer or the Special Servicer pursuant to the
next paragraph) to circumstances where it would be reasonable for the Trustee to
identify such property as an asset of, or as securing an asset of, the Trust or
such threatened proceedings as concerning the Trust and (2) no Responsible
Officer of the Trustee shall be deemed to have actual knowledge of the matters
described in clauses (vi) and (vii) of this Section 8.15(b) unless (x) any such
matter contemplated in clause (vi) occurred or related specifically to the Trust
or (y) such Responsible Officer was notified in a written instrument addressed
to it.
Further, each other party to this agreement shall promptly notify the
Trustee of the occurrence or existence of any of the forgoing matters in this
Section 8.15(b) of which a Servicing Officer (in the case of the Master Servicer
or the Special Servicer), a Responsible Officer (in the case of any Fiscal
Agent) or a senior officer (in the case of the Depositor) thereof has actual
knowledge.
(c) If as of the beginning of any fiscal year for the Trust (other
than fiscal year 2004), the Registered Certificates are held (directly or, in
the case of Registered Certificates held in book-entry form, through the
Depository) by less than 300 Holders and/or Depository Participants having
accounts with the Depository, the Trustee shall, in accordance with the Exchange
Act and the rules and regulations promulgated thereunder, timely file a Form 15
with respect to the Trust suspending all reporting requirements under the
Exchange Act.
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(d) As and to the extent required by the Xxxxxxxx-Xxxxx Act of 2002
(the "Xxxxxxxx-Xxxxx Act") and the rules adopted by the Commission with respect
thereto, all Annual Reports on Form 10-K filed with the Commission shall include
such certification as complies in form and substance with the Xxxxxxxx-Xxxxx Act
and the rules and regulations promulgated thereunder (such certification, the
"Xxxxxxxx-Xxxxx Certification"; any party hereto whose officer is to sign, in
accordance with the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated
thereunder, any Xxxxxxxx-Xxxxx Certification with respect to the Trust, a
"Certifying Party"; and any officer who is to sign, in accordance with the
Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder, any
Xxxxxxxx-Xxxxx Certification, a "Certifying Officer"). Upon request of any
Rating Agency, the Trustee shall deliver a copy of such Xxxxxxxx-Xxxxx
Certification to such Rating Agency.
(e) Any of the Depositor, the Trustee or the Master Servicer may be
the Certifying Party with respect to a Xxxxxxxx-Xxxxx Certification filed as
part of an Annual Report on Form 10-K relating to the Trust; provided that no
officer of either the Trustee or the Master Servicer shall be responsible for
being the sole signatory of any Xxxxxxxx-Xxxxx Certification to be filed in
connection with the Trust. In connection with the filing of any Annual Report on
Form 10-K with respect to the Trust as contemplated by Section 8.15(a), the
Certifying Party shall, no later than 10 days prior to the date on which the
Trustee has indicated its intention to file such report, cause its Certifying
Officer to execute and deliver to the Trustee, with respect to the Trust, for
filing with such Annual Report on Form 10-K, the Xxxxxxxx-Xxxxx Certification
that is to be included as part of such Annual Report on Form 10-K.
(f) No later than five (5) Business Days (or, in the case of an Annual
Report on Form 10-K, 20 days) prior to any filing of a Subsequent Exchange Act
Report that is to be made with respect to the Trust as contemplated by Section
8.15(a), the Trustee shall deliver a copy of such report, together with all
exhibits thereto, for review by the Depositor and the Special Servicer. Promptly
upon receipt of any such report and the accompanying exhibits, the Depositor and
the Special Servicer shall promptly (and in any event within two (2) Business
Days) review such report and the accompanying exhibits and notify the Trustee of
any material misstatements or omissions relating thereto that come to its
attention, which material misstatements or omissions the Trustee shall correct
(with written evidence of such correction to be sent to the Depositor, the
Master Servicer and the Special Servicer) prior to the filing of such report and
the accompanying exhibits.
(g) No later than 10 days prior to the date on which the Trustee has
indicated its intention to file any Annual Report on Form 10-K with respect to
the Trust (but no earlier than March 20 of the year in which such Annual Report
on Form 10-K is to be filed), unless the Trustee is to be the Certifying Party,
the Trustee shall cause the appropriate officer of the Trustee (i.e., the
officer thereof that would have qualified as a Certifying Officer) to execute
and deliver to each Certifying Party and Certifying Officer a certification (a
"Trustee Backup Certification"), which Trustee Backup Certification shall be in
the form of Exhibit P attached hereto. The Trustee shall indemnify and hold
harmless each Certifying Party and Certifying Officer to whom it delivers any
Trustee Backup Certification for all losses, liabilities, claims, damages, costs
and expenses (including reasonable attorneys' fees and expenses) resulting from
a breach of any certification made in such Trustee Backup Certification, as well
as any other losses, claims, damages, costs and expenses (including reasonable
attorneys' fees and expenses) incurred by such Certifying Party or Certifying
Officer, as the case may be, in connection with the execution and delivery of
the subject Xxxxxxxx-Xxxxx Certification resulting from the
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negligence, bad faith or willful misfeasance of the Trustee in connection with
the performance by the Trustee of its duties hereunder.
(h) No later than 10 days prior to the date on which the Trustee has
indicated its intention to file any Annual Report on Form 10-K with respect to
the Trust (but no earlier than March 20 of the year in which such Annual Report
on Form 10-K is to be filed), unless the Master Servicer is to be the Certifying
Party, the Master Servicer shall cause the appropriate officer of the Master
Servicer (i.e., the officer thereof that would have qualified as a Certifying
Party) to execute and deliver to each Certifying Party and Certifying Officer a
certification (a "Master Servicer Backup Certification"), which Master Servicer
Backup Certification shall be in the form of Exhibit Q attached hereto and shall
cover all of the Trust Mortgage Loans and REO Properties (including the GIC
Office Trust Mortgage Loan or any GIC Office REO Property, to the extent
required in accordance with the penultimate paragraph of Exhibit Q). In
addition, within the time periods set forth in the preceding sentence, the
Master Servicer shall execute and deliver to each depositor, trustee and/or
other certifying party and certifying officer executing a Xxxxxxxx-Xxxxx
Certification in connection with the securitization of the 000 Xxxxx Xxxxxx
Non-Trust Mortgage Loan, a master servicer backup certification covering the 000
Xxxxx Xxxxxx Non-Trust Mortgage Loan (and that may be relied on by each such
party to which it is delivered), which master servicer backup certification will
be substantially similar to the Master Servicer Backup Certification. The Master
Servicer shall indemnify and hold harmless each Certifying Party and Certifying
Officer to whom it delivers any Master Servicer Backup Certification for all
losses, liabilities, claims, damages, costs and expenses (including reasonable
attorneys' fees and expenses) resulting from a breach of any certification made
in such Master Servicer Backup Certification, as well as any other losses,
claims, damages, costs and expenses (including reasonable attorneys' fees and
expenses) incurred by such Certifying Party or Certifying Officer, as the case
may be, in connection with the execution and delivery of the subject
Xxxxxxxx-Xxxxx Certification, in each case, resulting from the negligence, bad
faith or willful misfeasance of the Master Servicer in connection with the
performance by the Master Servicer of its duties hereunder.
(i) No later than 10 days prior to the date on which the Trustee has
indicated its intention to file any Annual Report on Form 10-K (but no earlier
than March 20 of the year in which such Annual Report on From 10-K is to be
filed) with respect to the Trust, the Special Servicer shall cause the
appropriate officer of the Special Servicer (i.e., the officer thereof that
would have qualified as a Certifying Party) to execute and deliver to each
Certifying Party and Certifying Officer a certification (a "Special Servicer
Backup Certification"), which Special Servicer Backup Certification shall be in
the form of Exhibit R attached hereto and shall cover all of the Specially
Serviced Trust Mortgage Loans and Administered REO Properties (together with the
GIC Office Trust Mortgage Loan (if then specially serviced under the GIC Office
Servicing Agreement) or any GIC Office REO Property if the Special Servicer is,
is an Affiliate of, or receives a comparable certification relating thereto
from, the GIC Office Special Servicer). In addition, within the time periods set
forth in the preceding sentence, the Special Servicer shall execute and deliver
to each depositor, trustee and/or other certifying party and certifying officer
executing a Xxxxxxxx-Xxxxx Certification in connection with the securitization
of the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan, a special servicer backup
certification covering the 000 Xxxxx Xxxxxx Non-Trust Mortgage Loan (and that
may be relied on by each such party to which it is delivered), which special
servicer backup certification will be substantially similar to the Special
Servicer Backup Certification. The Special Servicer shall indemnify and hold
harmless each Certifying Party and Certifying Officer to whom it delivers any
Special Servicer Backup Certification for all losses, liabilities, claims,
damages, costs and expenses (including reasonable attorneys' fees and expenses)
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resulting from a breach of any certification made in such Special Servicer
Backup Certification, as well as any other losses, claims, damages, costs and
expenses (including reasonable attorneys' fees and expenses) incurred by such
Certifying Party or Certifying Officer, as the case may be, in connection with
the execution and delivery of the subject Xxxxxxxx-Xxxxx Certification resulting
from the negligence, bad faith or willful misfeasance of the Special Servicer in
connection with the performance by the Special Servicer of its duties hereunder.
(j) No later than 10 days prior to the date on which the Trustee has
indicated its intention to file the Annual Report on Form 10-K with respect to
the Trust for fiscal year 2004, unless the Depositor is to be the Certifying
Party, the Depositor shall cause an officer of the Depositor to execute and
deliver to each Certifying Party and Certifying Officer a certification (a
"Depositor Backup Certification"), which Depositor Backup Certification shall be
in a form mutually acceptable to the Certifying Party and the Depositor. The
Depositor shall indemnify and hold harmless each Certifying Party and Certifying
Officer to whom it delivers any Depositor Backup Certification for any and all
losses, liabilities, claims, damages, costs and expenses (including reasonable
attorneys' fees and expenses) incurred by such Certifying Party or Certifying
Officer resulting from a breach of any certification made in such Depositor
Backup Certification.
(k) The respective parties hereto agree to cooperate with all
reasonable requests made by any Certifying Party or Certifying Officer in
connection with such Person's attempt to conduct any due diligence that such
Person reasonably believes to be appropriate in order to allow it to deliver any
Xxxxxxxx-Xxxxx Certification or portion thereof with respect to the Trust.
(l) Unless the other parties hereto receive written notice from the
Trustee to the contrary, the Trustee hereby certifies that it intends to file
any Annual Report on Form 10-K with respect to the Trust for any particular
fiscal year on the last Business Day that is not more than 90 days following the
end of such fiscal year. Unless an alternative time period is provided for in
this Agreement, the respective parties hereto shall deliver to the Trustee, not
more than 60 days following the end of such fiscal year, any items required to
be delivered by such party that are to be an exhibit to such Annual Report on
Form 10-K.
(m) In the event the parties to this Agreement desire to further
clarify or amend any provision of this Section 8.15, this Agreement shall be
amended to reflect the new agreement between the parties covering matters in
this Section 8.15 pursuant to Section 11.01, which amendment shall not require
any Opinion of Counsel or Rating Agency confirmations or the consent of any
Certificateholder or any Serviced Non-Trust Mortgage Loan Noteholder; provided
that no such amendment shall diminish the filing requirements under this Section
8.15 on the part of the parties to this Agreement, as a collective whole, in
contravention of applicable law.
SECTION 8.16. Representations and Warranties of Trustee.
(a) The Trustee hereby represents and warrants to the Master Servicer,
the Special Servicer and the Depositor and for the benefit of the
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders, as of
the Closing Date, that:
(i) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
of America.
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(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 organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) Except to the extent that the laws of certain jurisdictions
in which any part of the Trust Fund may be located require that a
co-trustee or separate trustee be appointed to act with respect to such
property as contemplated by Section 8.10, the Trustee has the full power
and authority to 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 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 (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, including, but not limited to, its responsibility
to make P&I Advances if the Master Servicer fails to make a P&I Advance,
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.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or, in the Trustee's good faith 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.
(vii) Any consent, approval, authorization or order of any court
or governmental agency or body required for the execution, delivery and
performance by the Trustee of or compliance by the Trustee with this
Agreement, or the consummation of the transactions contemplated by this
Agreement, has been obtained and is effective, except where the lack of
consent, approval, authorization or order would not have a material adverse
effect on the performance by the Trustee under this Agreement.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
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(ix) The Trustee is an "Institutional Lender/Owner" within the
meaning of the 000 Xxxxx Xxxxxx Co-Lender Agreement, the GIC Office
Co-Lender Agreement, the Somerset Collection Co-Lender Agreement and the
Cumberland Place Co-Lender Agreement.
(x) The representations and warranties of the Trustee set forth
in Section 8.16(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit
they were made for so long as the Trust Fund remains in existence. Upon
discovery by any party hereto of any breach of any of the foregoing
representations, warranties and covenants, the party discovering such
breach shall give prompt written notice thereof to the other parties
hereto.
(b) Any successor Trustee shall be deemed to have made, as of the date
of its succession, each of the representations and warranties set forth in
Section 8.16(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 8.16(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 8.17. Appointment of Fiscal Agent.
(a) Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may appoint, at the Trustee's own
expense, a Fiscal Agent for purposes of making Advances hereunder that are
otherwise required to be made by the Trustee. Any Fiscal Agent shall at all
times maintain a long-term unsecured debt rating of no less than "Aa3" from
Xxxxx'x and "AA-" from S&P (or, in the case of either Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee and the Depositor
by such Rating Agency)). Any Person so appointed by the Trustee pursuant to this
Section 8.17(a) shall become the Fiscal Agent on the date as of which the
Trustee and the Depositor have received: (i) if the long-term unsecured debt of
the designated Person is not rated at least "Aa3" by Xxxxx'x and "AA-" by S&P,
written confirmation from each Rating Agency that the appointment of such
designated Person will not result in an Adverse Rating Event with respect to any
Class of Certificates; (ii) a written agreement whereby the designated Person is
appointed as, and agrees to assume and perform the duties of, Fiscal Agent
hereunder, executed by such designated Person and the Trustee (such agreement,
the "Fiscal Agent Agreement"); and (iii) an Opinion of Counsel (which shall be
paid for by the designated Person or the Trustee) substantially to the effect
that (A) the appointment of the designated Person to serve as Fiscal Agent is in
compliance with this Section 8.17, (B) the designated Person is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (C) the related Fiscal Agent Agreement has been duly authorized,
executed and delivered by the designated Person and (D) upon execution and
delivery of the related Fiscal Agent Agreement, the designated Person shall be
bound by the terms of this Agreement and, subject to customary bankruptcy and
insolvency exceptions and customary equity exceptions, that this Agreement shall
be enforceable against the designated Person in accordance with its terms. Any
Person that acts as Fiscal Agent shall, for so long as it so acts, be deemed a
party to this Agreement for all purposes hereof. Pursuant to the related Fiscal
Agent Agreement, each Fiscal Agent, if any, shall make representations and
warranties with respect to itself that are comparable to those made by the
Trustee pursuant to Section 8.16(a)(i) - (viii).
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(b) To the extent that the Trustee is required, pursuant to the terms
of this Agreement, to make any Advance, whether as successor Master Servicer or
otherwise, and has failed to do so in accordance with the terms hereof, any
Fiscal Agent (if any) shall make such Advance when and as required by the terms
of this Agreement on behalf the Trustee as if such Fiscal Agent were the Trustee
hereunder. To the extent that any Fiscal Agent (if any) makes an Advance
pursuant to this Section 8.17 or otherwise pursuant to this Agreement, the
obligations of the Trustee under this Agreement in respect of such Advance shall
be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities to which the Trustee is entitled
hereunder (including pursuant to Sections 8.05(b) and 8.05(c)) as if it were the
Trustee, except that all fees and expenses of any Fiscal Agent (other than
interest owed to such Fiscal Agent in respect of unreimbursed Advances) incurred
by such Fiscal Agent in connection with the transactions contemplated by this
Agreement shall be borne by the Trustee, and neither the Trustee nor such Fiscal
Agent shall be entitled to reimbursement therefor from any of the Trust, the
Depositor, the Master Servicer or the Special Servicer.
(d) The obligations of any Fiscal Agent set forth in this Section 8.17
or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it shall act as Trustee hereunder. Any Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 8.06; provided that any Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent in accordance with Section 8.17(a) shall belong to the
successor Trustee insofar as such appointment is necessary for such successor
Trustee to satisfy the eligibility requirements of Section 8.06).
(e) The Trustee shall promptly notify the other parties hereto, the
Certificateholders and the Serviced Non-Trust Mortgage Loan Noteholders in
writing of the appointment, resignation or removal of any Fiscal Agent.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Trust
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective obligations
and responsibilities under this Agreement of the Depositor, the Master Servicer,
the Special Servicer, any Fiscal Agent and 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): (i) to the Certificateholders of all amounts held by or
on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (A) the purchase by the
Depositor, Xxxxxx Brothers, the Special Servicer, any Controlling Class
Certificateholder or the Master Servicer of all the Trust Mortgage Loans and
each REO Property remaining in the Trust Fund at a price equal to (1) the sum
(x) of the aggregate Purchase Price of all the Trust Mortgage Loans and (y) the
aggregate Appraised Values of any REO Properties then included in the Trust
Fund, minus (2) if the purchaser is the Master Servicer or the Special Servicer,
the aggregate amount of unreimbursed Advances made by such Person, together with
any interest accrued and payable to such Person in respect of unreimbursed
Advances in accordance with Section 3.11(g) and, in the case of the Master
Servicer, Section 4.03(d), and any unpaid servicing compensation (including the
Excess Servicing Strip) remaining outstanding and payable thereto (which items
shall be deemed to have been paid or reimbursed to the Master Servicer or the
Special Servicer, as the case may be, in connection with such purchase), (B) the
exchange by all the Certificateholders of all the Certificates for all the Trust
Mortgage Loans and each REO Property remaining in the Trust Fund in the manner
set forth below in this Section 9.01 and (C) the final payment or other
liquidation (or any advance with respect thereto) of the last Trust Mortgage
Loan or REO Property remaining in the Trust Fund; and (ii) to the Trustee, any
Fiscal Agent, the Master Servicer, the Special Servicer and the members,
managers, officers, directors, employees and/or agents of each of them of all
amounts which may have become due and owing to any of them hereunder; provided,
however, that in no event shall the trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court of St.
Xxxxx, living on the date hereof.
Each of the Depositor, Xxxxxx Brothers, the Special Servicer, any
Controlling Class Certificateholder (with priority among such Holders being
given to the Holder of Certificates representing the greatest Percentage
Interest in the Controlling Class) or the Master Servicer, in that order of
priority (with the Depositor having the most senior priority), may at its option
elect to purchase all of the Trust Mortgage Loans and each REO Property
remaining in the Trust Fund as contemplated by clause (i) of the preceding
paragraph by giving written notice to the other parties hereto no later than 60
days prior to the anticipated date of purchase; provided, however, that (i) the
aggregate Stated Principal Balance of the Mortgage Pool at the time of such
election is less than 1.0% of the Initial Pool Balance set forth in the
Preliminary Statement, and (ii) no such Person shall have the right to effect
such a purchase if, within 30 days following its delivery of a notice of
election pursuant to this paragraph, any other such Person with a higher
priority shall give notice of its election to purchase all of the Trust Mortgage
Loans and each REO Property remaining in the Trust Fund and shall thereafter
effect such purchase in accordance with the terms hereof. If the Trust Fund is
to be terminated in connection with
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the Master Servicer's, the Special Servicer's, a Controlling Class
Certificateholder's, Xxxxxx Brothers' or the Depositor's purchase of all of the
Trust Mortgage Loans and each REO Property remaining in the Trust Fund, the
Master Servicer, the Special Servicer, such Controlling Class Certificateholder,
Xxxxxx Brothers or the Depositor, as applicable, shall deliver to the Trustee
not later than the fifth Business Day preceding the Distribution Date on which
the final distribution on the Certificates is to occur: (x) for deposit in the
Pool Custodial Account, an amount in immediately available funds equal to the
above-described purchase price (provided, however, that if any REO Property
relating to a Serviced Loan Combination is being purchased pursuant to the
foregoing, the portion of the above-described purchase price allocable to such
REO Property shall initially be deposited into the related Loan Combination
Custodial Account); and (y) an Opinion of Counsel, at the expense of the party
effecting the purchase, stating that the termination of the Trust satisfies the
requirements of a qualified liquidation under Section 860F of the Code and any
regulations thereunder. In addition, on the Trust Master Servicer Remittance
Date immediately preceding the Final Distribution Date, the Master Servicer
shall transfer to the Collection Account all amounts required to be transferred
thereto on such Trust Master Servicer Remittance Date from the Pool Custodial
Account pursuant to the first paragraph of Section 3.04(b), together with any
other amounts on deposit in the Pool Custodial Account that would otherwise be
held for future distribution. Upon confirmation that such final deposits have
been made, the Trustee shall release or cause to be released to the Master
Servicer, the Special Servicer, the purchasing Controlling Class
Certificateholder, Xxxxxx Brothers or the Depositor, as applicable, the Mortgage
Files for the remaining Trust Mortgage Loans and shall execute all assignments,
endorsements and other instruments furnished to it by the Master Servicer, the
Special Servicer, the purchasing Controlling Class Certificateholder, Xxxxxx
Brothers or the Depositor, as applicable, as shall be necessary to effectuate
transfer of the Trust Mortgage Loans and REO Properties to the Master Servicer,
the Special Servicer, the purchasing Controlling Class Certificateholder, Xxxxxx
Brothers or the Depositor (or their respective designees), as applicable;
provided that, if any Trust Mortgage Loan purchased pursuant to this Section
9.01 is a Serviced Combination Trust Mortgage Loan, then the release,
endorsement or assignment of the documents constituting the related Mortgage
File and Servicing File shall be in the manner contemplated by Section 3.25. Any
transfer of Trust Mortgage Loans pursuant to this paragraph, except in the case
of the 000 Xxxxx Xxxxxx Trust Mortgage Loan, the GIC Office Trust Mortgage Loan,
the Somerset Collection Trust Mortgage Loan, the Xxxxxxxx Place Trust Mortgage
Loan or the Cumberland Place Trust Mortgage Loan, shall be on a
servicing-released basis.
Following the date on which the aggregate Certificate Principal
Balance of the Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C,
Class D, Class E, Class F and Class G Certificates is reduced to zero, all the
remaining Certificateholders, acting together (each having agreed in writing to
so act, a copy of which writing shall be delivered to the Trustee), shall have
the right to exchange all of the Certificates for all of the Trust Mortgage
Loans and each REO Property remaining in the Trust Fund as contemplated by
clause (i)(B) of the first paragraph of this Section 9.01(a), by giving written
notice to all the parties hereto and the Serviced Non-Trust Mortgage Loan
Noteholders no later than 60 days prior to the anticipated date of exchange;
provided that no such exchange may occur if any of the remaining REO Properties
relates to a Serviced Loan Combination. In the event that all the
Certificateholders elect (as evidenced by a writing signed by each
Certificateholder and delivered to the Trustee) to exchange all of the
Certificates for all of the Trust Mortgage Loans and, subject to the proviso to
the preceding sentence, each REO Property remaining in the Trust Fund, the
Certificateholders, not later than the fifth Business Day preceding the
Distribution Date on which the final distribution on the Certificates is to
occur, shall (i) deposit in the applicable Custodial Account an amount in
immediately available funds equal to all amounts then due and owing to the
Depositor, the Master Servicer, the Special Servicer, the
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Trustee and any Fiscal Agent pursuant to Section 3.05(a), Section 3.05A, Section
3.05B, Section 3.05C or Section 3.05D, as applicable, or that may be withdrawn
from the Collection Account pursuant to Section 3.05(b), but only to the extent
that such amounts are not already on deposit in such Custodial Account and (ii)
pay to the Trustee an amount, in immediately available funds, equal to
$5,000.00. In addition, on the Trust Master Servicer Remittance Date immediately
preceding the Final Distribution Date, the Master Servicer shall transfer to the
Collection Account all amounts required to be transferred thereto on such Trust
Master Servicer Remittance Date from the Pool Custodial Account pursuant to the
first paragraph of Section 3.04(b), together with any other amounts on deposit
in the Pool Custodial Account that would otherwise be held for future
distribution. Upon confirmation that such final deposits have been made and
following the surrender of all the Certificates on the Final Distribution Date,
the Trustee shall release or cause to be released to a designee of all the
Certificateholders (each Certificateholder having agreed to such designation in
a writing delivered to the Trustee), the Mortgage Files for the remaining Trust
Mortgage Loans and REO Properties and shall execute all assignments,
endorsements and other instruments furnished to it by the Certificateholders as
shall be necessary to effectuate transfer of the Trust Mortgage Loans and REO
Properties remaining in the Trust Fund; provided that, if any Trust Mortgage
Loan exchanged pursuant to this Section 9.01 is a Serviced Combination Trust
Mortgage Loan, then the release, endorsement or assignment of the documents
constituting the related Mortgage File and Servicing File shall be in the manner
contemplated by Section 3.25. Any transfer of Trust Mortgage Loans pursuant to
this paragraph, except in the case of the 000 Xxxxx Xxxxxx Trust Mortgage Loan,
the GIC Office Trust Mortgage Loan, the Somerset Collection Trust Mortgage Loan,
the Xxxxxxxx Place Trust Mortgage Loan or the Cumberland Place Trust Mortgage
Loan, shall be on a servicing-released basis.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and the Non-Trust Mortgage Loan Noteholders mailed
(a) if such notice is given in connection with the Depositor's, the Master
Servicer's, the Special Servicer's, Xxxxxx Brothers' or a Controlling Class
Certificateholder's purchase of the Trust 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 eighth day of such month, in each case specifying (i) the
Distribution Date upon which the Trust Fund will terminate and final payment of
the Certificates will be made, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated. The Trustee shall give such notice to the Master Servicer,
the Special Servicer and the Depositor at the time such notice is given to
Certificateholders.
Upon presentation and surrender of the Certificates 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 Collection Account that are allocable to payments on the Class of
Certificates so presented and surrendered. Amounts on deposit in the Collection
Account as of the Final Distribution Date, up to the Available Distribution
Amount for the Final Distribution Date, shall be allocated for the following
purposes and in the following order of priority, in each case to the extent of
remaining available funds:
(i) to make distributions of interest to the Holders of the
respective Classes of the Senior Certificates, up to an amount equal to,
and pro rata in accordance with, all
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Distributable Certificate Interest in respect of each such Class of
Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(ii) to make distributions of principal to the Holders of the
respective Classes of the Class A Certificates, up to an amount equal to,
and pro rata in accordance with, the Class Principal Balance of each such
Class of Certificates outstanding immediately prior to such Distribution
Date;
(iii) to reimburse the Holders of the respective Classes of Class
A Certificates, up to an amount equal to, and on a pro rata basis in
accordance with, the Loss Reimbursement Amount with respect to each such
Class of Certificates for the Final Distribution Date;
(iv) to make distributions of interest to the Holders of the
Class B Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class B Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(v) to make distributions of principal to the Holders of the
Class B Certificates, up to an amount equal to the Class Principal Balance
of the Class B Certificates outstanding immediately prior to such
Distribution Date;
(vi) to reimburse the Holders of the Class B Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to the Class
B Certificates for the Final Distribution Date;
(vii) to make distributions of interest to the Holders of the
Class C Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class C Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(viii) to make distributions of principal to the Holders of the
Class C Certificates, up to an amount equal to the Class Principal Balance
of the Class C Certificates outstanding immediately prior to such
Distribution Date;
(ix) to reimburse the Holders of the Class C Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to the Class
C Certificates for the Final Distribution Date;
(x) to make distributions of interest to the Holders of the Class
D Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of the Class D Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution Dates;
(xi) to make distributions of principal to the Holders of the
Class D Certificates, up to an amount equal to the Class Principal Balance
of the Class D Certificates outstanding immediately prior to such
Distribution Date;
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(xii) to reimburse the Holders of the Class D Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to the Class
D Certificates for the Final Distribution Date;
(xiii) to make distributions of interest to the Holders of the
Class E Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class E Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xiv) to make distributions of principal to the Holders of the
Class E Certificates, up to an amount equal to the Class Principal Balance
of the Class E Certificates outstanding immediately prior to such
Distribution Date;
(xv) to reimburse the Holders of the Class E Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to the Class
E Certificates for the Final Distribution Date;
(xvi) to make distributions of interest to the Holders of the
Class F Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class F Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xvii) to make distributions of principal to the Holders of the
Class F Certificates, up to an amount equal to the Class Principal Balance
of the Class F Certificates outstanding immediately prior to such
Distribution Date;
(xviii) to reimburse the Holders of the Class F Certificates, up
to an amount equal to the Loss Reimbursement Amount with respect to the
Class F Certificates for the Final Distribution Date;
(xix) to make distributions of interest to the Holders of the
Class G Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class G Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xx) to make distributions of principal to the Holders of the
Class G Certificates, up to an amount equal to the Class Principal Balance
of the Class G Certificates outstanding immediately prior to such
Distribution Date;
(xxi) to reimburse the Holders of the Class G Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to the Class
G Certificates for the Final Distribution Date;
(xxii) to make distributions of interest to the Holders of the
Class H Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class H Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
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(xxiii) to make distributions of principal to the Holders of the
Class H Certificates, up to an amount equal to the Class Principal Balance
of the Class H Certificates outstanding immediately prior to such
Distribution Date;
(xxiv) to reimburse the Holders of the Class H Certificates, up
to an amount equal to the Loss Reimbursement Amount with respect to the
Class H Certificates for the Final Distribution Date;
(xxv) to make distributions of interest to the Holders of the
Class J Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class J Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxvi) to make distributions of principal to the Holders of the
Class J Certificates, up to an amount equal to the Class Principal Balance
of the Class J Certificates outstanding immediately prior to such
Distribution Date;
(xxvii) to reimburse the Holders of the Class J Certificates, up
to an amount equal to the Loss Reimbursement Amount with respect to the
Class J Certificates for the Final Distribution Date;
(xxviii) to make distributions of interest to the Holders of the
Class K Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class K Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxix) to make distributions of principal to the Holders of the
Class K Certificates, up to an amount equal to the Class Principal Balance
of the Class K Certificates outstanding immediately prior to such
Distribution Date;
(xxx) to reimburse the Holders of the Class K Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to the Class
K Certificates for the Final Distribution Date;
(xxxi) to make distributions of interest to the Holders of the
Class L Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class L Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxii) to make distributions of principal to the Holders of the
Class L Certificates, up to an amount equal to the Class Principal Balance
of the Class L Certificates outstanding immediately prior to such
Distribution Date;
(xxxiii) to reimburse the Holders of the Class L Certificates, up
to an amount equal to the Loss Reimbursement Amount with respect to the
Class L Certificates for the Final Distribution Date;
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(xxxiv) to make distributions of interest to the Holders of the
Class M Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class M Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxv) to make distributions of principal to the Holders of the
Class M Certificates, up to an amount equal to the Class Principal Balance
of the Class M Certificates outstanding immediately prior to such
Distribution Date;
(xxxvi) to reimburse to the Holders of the Class M Certificates,
up to an amount equal to the Loss Reimbursement Amount with respect to the
Class M Certificates for the Final Distribution Date;
(xxxvii) to make distributions of interest to the Holders of the
Class N Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class N Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxviii) to make distributions of principal to the Holders of
the Class N Certificates, up to an amount equal to the Class Principal
Balance of the Class N Certificates outstanding immediately prior to such
Distribution Date;
(xxxix) to reimburse the Holders of the Class N Certificates, up
to an amount equal to the Loss Reimbursement Amount with respect to the
Class N Certificates for the Final Distribution Date;
(xl) to make distributions of interest to the Holders of the
Class P Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class P Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xli) to make distributions of principal to the Holders of the
Class P Certificates, up to an amount equal to the Class Principal Balance
of the Class P Certificates outstanding immediately prior to such
Distribution Date;
(xlii) to reimburse to the Holders of the Class P Certificates,
up to an amount equal to the Loss Reimbursement Amount with respect to the
Class P Certificates for the Final Distribution Date;
(x1iii) to make distributions of interest to the Holders of the
Class Q Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class Q Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(x1iv) to make distributions of principal to the Holders of the
Class Q Certificates, up to an amount equal to the Class Principal Balance
of the Class Q Certificates outstanding immediately prior to such
Distribution Date;
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(xlv) to reimburse to the Holders of the Class Q Certificates, up
to an amount equal to the Loss Reimbursement Amount with respect to the
Class Q Certificates for the Final Distribution Date;
(xlvi) to make distributions of interest to the Holders of the
Class S Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class S Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xlvii) to make distributions of principal to the Holders of the
Class S Certificates, up to an amount equal to the Class Principal Balance
of the Class S Certificates outstanding immediately prior to such
Distribution Date;
(xlviii) to reimburse the Holders of the Class S Certificates, up
to an amount equal to the Loss Reimbursement Amount with respect to the
Class S Certificates for the Final Distribution Date;
(xlix) to make distributions of interest to the Holders of the
Class T Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of the Class T Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(l) to make distributions of principal to the Holders of the
Class T Certificates, up to an amount equal to the Class Principal Balance
of the Class T Certificates outstanding immediately prior to such
Distribution Date;
(li) to reimburse the Holders of the Class T Certificates, up to
an amount equal to the Loss Reimbursement Amount with respect to the Class
T Certificates for the Final Distribution Date;
(lii) to make distributions to the Holders of the Class R-III
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions (other than distributions of Net Prepayment
Consideration) deemed made in respect of the REMIC II Regular Interests on
such Distribution Date pursuant to Section 4.01(j), over (B) the aggregate
distributions made in respect of the Regular Interest Certificates on such
Distribution Date pursuant to clauses (i) through (li) above;
(liii) to make distributions to the Holders of the Class R-II
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions (other than distributions of Net Prepayment
Consideration) deemed made in respect of the REMIC I Regular Interests on
such Distribution Date pursuant to Section 4.01(k), over (B) the aggregate
distributions (other than distributions of Net Prepayment Consideration)
deemed made in respect of the REMIC II Regular Interests on such
Distribution Date pursuant to Section 4.01(j); and
(liv) to make distributions to the Holders of the Class R-I
Certificates, up to an amount equal to the balance, if any, of the
Available Distribution Amount for the Final Distribution Date remaining
after the distributions to be made on such Distribution Date pursuant to
clauses (i) through (liii) above.
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All distributions of interest made in respect of either Class of
Interest-Only Certificates on the Final Distribution Date pursuant to clause (i)
of the preceding paragraph, shall be deemed to have been made in respect of the
respective REMIC III Components of such Class, pro rata in accordance with the
respective amounts of Distributable Component Interest in respect of such REMIC
III Components for such Distribution Date and, to the extent not previously
deemed paid pursuant to Section 4.01(a), for all prior Distribution Dates.
Any Prepayment Premiums and Yield Maintenance Charges on deposit in
the Collection Account as of the Final Distribution Date (net of any Workout
Fees and/or Liquidation Fees payable therefrom) shall be distributed among the
Holders of the Class X-CL, Class A-1, Class X-0, Xxxxx X-0, Class A-4, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J and/or Class K
Certificates in accordance with Section 4.01(c).
Any amounts representing Additional Interest on deposit in the
Collection Account as of the Final Distribution Date shall be distributed to the
Holders of the Class V Certificates in accordance with Section 4.01(d).
Any funds not distributed to any Holder or Holders of Certificates of
any Class on the Final Distribution Date because of the failure of such Holder
or Holders to tender their Certificates shall, on such date, be set aside and
held uninvested in trust and credited to the account or accounts of the
appropriate non-tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the 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
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, then, subject to applicable law, the Trustee shall distribute to
the Class R-III Certificateholders all unclaimed funds and other assets which
remain subject hereto.
All actual distributions on the respective Classes of REMIC III
Certificates on the Final Distribution Date in accordance with foregoing
provisions of this Section 9.01 shall be deemed to first have been distributed
from REMIC I to REMIC II on the various REMIC I Regular Interests in accordance
with Section 4.01(k) and then from REMIC II to REMIC III on the various REMIC II
Regular Interests in accordance with Section 4.01(j).
SECTION 9.02. Additional Termination Requirements.
(a) If the Depositor, Xxxxxx Brothers, any Controlling Class
Certificateholder, the Special Servicer or the Master Servicer purchases all of
the Trust Mortgage Loans and each REO Property remaining in the Trust Fund as
provided in Section 9.01, the Trust Fund (and, accordingly, each REMIC Pool)
shall be terminated in accordance with the following additional requirements,
unless the Person effecting such purchase obtains at its own expense and
delivers to the Trustee and the Tax
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Administrator, an Opinion of Counsel, addressed to the Trustee and the Tax
Administrator, to the effect that the failure of the Trust Fund to comply with
the requirements of this Section 9.02 will not result in an Adverse REMIC Event
or an Adverse Grantor Trust Event:
(i) the Tax Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax Return
for each REMIC Pool pursuant to Treasury regulations section 1.860F-1 and
shall satisfy all requirements of a qualified liquidation under Section
860F of the Code and any regulations thereunder as set forth in the Opinion
of Counsel obtained pursuant to Section 9.01 from the party effecting the
purchase of all the Trust Mortgage Loans and REO Property remaining in the
Trust Fund;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell all of the assets of REMIC I to the Master Servicer, Xxxxxx Brothers,
the purchasing Controlling Class Certificateholder, the Special Servicer or
the Depositor, as applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Certificateholders in accordance with
Section 9.01 all cash on hand (other than cash retained to meet claims),
and each REMIC Pool shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Tax Administrator to specify the 90-day liquidation
period for each REMIC Pool, which authorization shall be binding upon all
successor Certificateholders.
SECTION 9.03. GIC Office REO Property.
References to "REO Property" and "REO Properties" in Sections 9.01 and
9.02 shall be deemed to include the Trust's rights with respect to any GIC
Office REO Property and such rights shall be taken into account in calculating
the purchase price payable under Section 9.01 for the purchase of assets out of
the Trust Fund.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The Tax Administrator shall elect to treat each REMIC Pool as a
REMIC under the Code and, if necessary, under applicable state law. Such
election will be made on Form 1066 or other appropriate federal or state Tax
Returns for the taxable year ending on the last day of the calendar year in
which the Certificates are issued.
(b) The REMIC I Regular Interests, the REMIC II Regular Interests and
the Regular Interest Certificates (or, in the case of the Class X-CL or Class
X-CP Certificates, each of the REMIC III Components of such Class) are hereby
designated as "regular interests" (within the meaning of Section 860G(a)(1) of
the Code) in REMIC I, REMIC II and REMIC III, respectively. The Class R-I
Certificates, the Class R-II Certificates and the Class R-III Certificates are
hereby designated as the single class of "residual interests" (within the
meaning of Section 860G(a)(2) of the Code) in REMIC I, REMIC II and REMIC III,
respectively. None of the Master Servicer, the Special Servicer or the Trustee
shall (to the extent within its control) permit the creation of any other
"interests" in REMIC I, REMIC II or REMIC III (within the meaning of Treasury
regulations section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of each
REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(d) The related Plurality Residual Interest Certificateholder as to
the applicable taxable year is hereby designated as the Tax Matters Person of
each REMIC Pool, and shall act on behalf of the related REMIC in relation to any
tax matter or controversy and shall represent the related REMIC in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority; provided that the Tax Administrator is hereby
irrevocably appointed to act and shall act (in consultation with the Tax Matters
Person for each REMIC Pool) as agent and attorney-in-fact for the Tax Matters
Person for each REMIC Pool in the performance of its duties as such.
(e) For purposes of Treasury regulations section 1.860G-1(a)(4)(iii),
the related Legal Final Distribution Date has been designated the "latest
possible maturity date" of each REMIC I Regular Interest, each REMIC II Regular
Interest and each Class of Regular Interest Certificates (or, in the case of the
Class X-CL or Class X-CP Certificates, each REMIC III Component of such Class).
(f) Except as otherwise provided in Section 3.17(a) and subsections
(i) and (j) below, the Tax Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to each REMIC Pool (but not including any professional fees or expenses related
to audits or any administrative or judicial proceedings with respect to the
Trust Fund that involve the IRS or state tax authorities which extraordinary
expenses shall be payable or reimbursable to the Tax Administrator from the
Trust Fund (exclusive of the Grantor Trust Assets), unless otherwise provided in
Section 10.01(i) or 10.01(j)).
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(g) Within 30 days after the Closing Date, the Tax Administrator shall
prepare and file with the IRS Form 8811, "Information Return for Real Estate
Mortgage Investment Conduits (REMIC) and Issuers of Collateralized Debt
Obligations" for the Trust Fund. In addition, the Tax Administrator shall
prepare, sign and file all of the other Tax Returns in respect of each REMIC
Pool. The expenses of preparing and filing such returns shall be borne by the
Tax Administrator without any right of reimbursement therefor. The other parties
hereto shall provide on a timely basis to the Tax Administrator or its designee
such information with respect to each REMIC Pool as is in its possession and
reasonably requested by the Tax Administrator to enable it to perform its
obligations under this Section 10.01. Without limiting the generality of the
foregoing, the Depositor, within ten days following the Tax Administrator's
request therefor, shall provide in writing to the Tax Administrator such
information as is reasonably requested by the Tax Administrator for tax
purposes, as to the valuations and issue prices of the Certificates, and the Tax
Administrator's duty to perform its reporting and other tax compliance
obligations under this Section 10.01 shall be subject to the condition that it
receives from the Depositor such information possessed by the Depositor that is
necessary to permit the Tax Administrator to perform such obligations.
(h) The Tax Administrator shall perform on behalf of each REMIC Pool
all reporting and other tax compliance duties that are the responsibility of
each such REMIC Pool under the Code, the REMIC Provisions or other compliance
guidance issued by the IRS or any state or local taxing authority. Included
among such duties, the Tax Administrator shall provide to: (i) any Transferor of
a Residual Interest Certificate, such information as is necessary for the
application of any tax relating to the transfer of a Residual Interest
Certificate to any Person who is not a Permitted Transferee; (ii) the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required hereunder); and (iii) the IRS, the name, title, address and telephone
number of the Person who will serve as the representative of each REMIC Pool.
(i) The Tax Administrator shall perform its duties hereunder so as to
maintain the status of each REMIC Pool as a REMIC under the REMIC Provisions
(and the Trustee, the Master Servicer and the Special Servicer shall assist the
Tax Administrator to the extent reasonably requested by the Tax Administrator
and to the extent of information within the Trustee's, the Master Servicer's or
the Special Servicer's possession or control). None of the Tax Administrator,
the Master Servicer, the Special Servicer, or the Trustee shall knowingly take
(or cause any REMIC Pool to take) any action or fail to take (or fail to cause
to be taken) any action that, under the REMIC Provisions, if taken or not taken,
as the case may be, could result in an Adverse REMIC Event, unless the Tax
Administrator has obtained or received an Opinion of Counsel (at the expense of
the party requesting such action or at the expense of the Trust Fund if the Tax
Administrator seeks to take such action or to refrain from acting for the
benefit of the Certificateholders) to the effect that the contemplated action
will not result in an Adverse REMIC Event or an Adverse Grantor Trust Event.
None of the other parties hereto shall take any action or fail to take any
action (whether or not authorized hereunder) as to which the Tax Administrator
has advised it in writing that the Tax Administrator has received or obtained an
Opinion of Counsel to the effect that an Adverse REMIC Event or an Adverse
Grantor Trust Event could result from such action or failure to act. In
addition, prior to taking any action with respect to any REMIC Pool, or causing
any REMIC Pool to take any action, that is not expressly permitted under the
terms of this Agreement, the Master Servicer and the Special Servicer shall
consult with the Tax Administrator or its designee, in writing, with respect to
whether such action could cause an Adverse REMIC Event or an Adverse Grantor
Trust Event to occur. The Tax Administrator may consult with counsel to make
such
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written advice, and the cost of same shall be borne by the party seeking to take
the action not permitted by this Agreement, but in no event at the cost or
expense of the Trust Fund or the Trustee. At all times as may be required by the
Code, the Tax Administrator shall make reasonable efforts to ensure that
substantially all of the assets of each REMIC Pool will consist of "qualified
mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined in Section 860G(a)(5) of the Code.
(j) If any tax is imposed on any REMIC Pool, including "prohibited
transactions" taxes as defined in Section 860F(a)(2) of the Code, any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, any taxes on contributions to any REMIC Pool after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code
or any applicable provisions of State or Local Tax laws (other than any tax
permitted to be incurred by the Special Servicer pursuant to Section 3.17(a)),
such tax, together with all incidental costs and expenses (including penalties
and reasonable attorneys' fees), shall be charged to and paid by: (i) the Tax
Administrator, if such tax arises out of or results from a breach by the Tax
Administrator of any of its obligations under this Section 10.01; (ii) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Section
10.01; (iii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article III or
this Section 10.01; (iv) the Trustee, if such tax arises out of or results from
a breach by the Trustee of any of its obligations under Article IV, Article VIII
or this Section 10.01; (v) the Depositor, if such tax was imposed due to the
fact that any of the Xxxxxx Trust Mortgage Loans did not, at the time of their
transfer to REMIC I, constitute a "qualified mortgage" as defined in Section
860G(a)(3) of the Code; or (vi) the Trust Fund, excluding the portion thereof
constituting the Grantor Trust, in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a) shall be charged to
and paid by the Trust Fund (exclusive of the Grantor Trust Assets). Any such
amounts payable by the Trust Fund shall be paid by the Trustee upon the written
direction of the Tax Administrator out of amounts on deposit in the Collection
Account in reduction of the Available Distribution Amount pursuant to Section
3.05(b).
(k) The Tax Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC Pool on a calendar year
and on an accrual basis.
(l) Following the Startup Day, none of the Trustee, the Master
Servicer and the Special Servicer shall accept any contributions of assets to
any REMIC Pool unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution and in no event at the
expense of the Trust Fund or the Trustee) to the effect that the inclusion of
such assets in such REMIC Pool will not cause: (i) such REMIC Pool to fail to
qualify as a REMIC at any time that any Certificates are outstanding; or (ii)
the imposition of any tax on such REMIC Pool under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(m) None of the Trustee, the Master Servicer and the Special Servicer
shall consent to or, to the extent it is within the control of such Person,
permit: (i) the sale or disposition of any of the Trust Mortgage Loans (except
in connection with (A) the default or reasonably foreseeable material default of
a Trust Mortgage Loan, including, but not limited to, the sale or other
disposition of a Mortgaged Property acquired by deed in lieu of foreclosure, (B)
the bankruptcy of any REMIC Pool, (C) the termination of any REMIC Pool pursuant
to Article IX of this Agreement, or (D) a purchase of Trust Mortgage Loans
pursuant to or as contemplated by Article II or III of this Agreement); (ii) the
sale or
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disposition of any investments in any Custodial Account or REO Account for gain;
or (iii) the acquisition of any assets for any REMIC Pool (other than a
Mortgaged Property acquired through foreclosure, deed in lieu of foreclosure or
otherwise in respect of a defaulted Trust Mortgage Loan and other than Permitted
Investments acquired in accordance with Section 3.06 in connection with the
investment of funds in a Custodial Account or an REO Account); in any event
unless it has received an Opinion of Counsel (at the expense of the party
seeking to cause such sale, disposition, or acquisition but in no event at the
expense of the Trust Fund or the Trustee) to the effect that such sale,
disposition, or acquisition will not cause: (x) any REMIC Pool to fail to
qualify as a REMIC at any time that any Certificates are outstanding; or (y) the
imposition of any tax on any REMIC Pool under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(n) Except as permitted by Section 3.17(a), none of the Trustee, the
Master Servicer and the Special Servicer shall enter into any arrangement by
which any REMIC Pool will receive a fee or other compensation for services nor
permit any REMIC Pool to receive any income from assets other than "qualified
mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
SECTION 10.02. Grantor Trust Administration.
(a) The Tax Administrator shall treat the assets of the Grantor Trusts
created hereunder, for tax return preparation purposes, as Grantor Trusts under
the Code and, if necessary, under applicable state law and will file appropriate
federal or state Tax Returns for each taxable year ending on or after the last
day of the calendar year in which the Certificates are issued.
(b) The Tax Administrator shall pay out of its own funds any and all
routine tax administration expenses of the Trust Fund incurred with respect to
the Grantor Trusts (but not including any professional fees or expenses related
to audits or any administrative or judicial proceedings with respect to the
Trust Fund that involve the IRS or state tax authorities which extraordinary
expenses shall be payable or reimbursable to the Tax Administrator from the
assets of the Trust Fund included in the applicable Grantor Trust unless
otherwise provided in Section 10.02(e) or 10.02(f)).
(c) The Tax Administrator shall prepare, sign and file all of the Tax
Returns in respect of the Grantor Trust. The expenses of preparing and filing
such returns shall be borne by the Tax Administrator without any right of
reimbursement therefor. The Tax Administrator shall comply with such requirement
by filing Form 1041, indicating the name and address of the Trust and signed by
the Tax Administrator but otherwise left blank. There shall be appended to each
such form a schedule for each Certificateholder indicating such
Certificateholder's share of income and expenses of the Trust for the portion of
the preceding calendar year in which such Certificateholder possessed an
Ownership Interest in a Certificate. Such form shall be prepared in sufficient
detail to enable reporting on the cash or accrual method of accounting, as
applicable, and to report on such Certificateholder's fiscal year if other than
the calendar year. The other parties hereto shall provide on a timely basis to
the Tax Administrator or its designee such information with respect to the
Grantor Trust as is in its possession and reasonably requested by the Tax
Administrator to enable it to perform its obligations under this Section 10.02.
Without limiting the generality of the foregoing, the Depositor, within ten days
following the Tax Administrator's request therefor, shall provide in writing to
the Tax Administrator such information as is reasonably requested by the Tax
Administrator for tax purposes, and the Tax Administrator's duty to perform its
reporting and other tax compliance obligations under this Section
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10.02 shall be subject to the condition that it receives from the Depositor such
information possessed by the Depositor that is necessary to permit the Tax
Administrator to perform such obligations.
(d) The Tax Administrator shall perform on behalf of the Grantor
Trusts created hereunder all reporting and other tax compliance duties that are
required in respect thereof under the Code, the Grantor Trust Provisions or
other compliance guidance issued by the IRS or any state or local taxing
authority, including the furnishing to Certificateholders of the schedules
described in Section 10.01(c).
(e) The Tax Administrator shall perform its duties hereunder so as to
maintain the status of the assets of the Trust Fund included in each of the
Grantor Trusts created hereunder as a Grantor Trust under the Grantor Trust
Provisions (and the Trustee, the Master Servicer and the Special Servicer shall
assist the Tax Administrator to the extent reasonably requested by the Tax
Administrator and to the extent of information within the Trustee's, the Master
Servicer's or the Special Servicer's possession or control). None of the Tax
Administrator, Master Servicer, the Special Servicer or the Trustee shall
knowingly take (or cause the Grantor Trusts created hereunder to take) any
action or fail to take (or fail to cause to be taken) any action that, under the
Grantor Trust Provisions, if taken or not taken, as the case may be, could
result in an Adverse Grantor Trust Event, unless the Tax Administrator has
obtained or received an Opinion of Counsel (at the expense of the party
requesting such action or at the expense of the Trust Fund if the Tax
Administrator seeks to take such action or to refrain from taking any action for
the benefit of the Certificateholders) to the effect that the contemplated
action will not result in an Adverse Grantor Trust Event. None of the other
parties hereto shall take any action or fail to take any action (whether or not
authorized hereunder) as to which the Tax Administrator has advised it in
writing that the Tax Administrator has received or obtained an Opinion of
Counsel to the effect that an Adverse Grantor Trust Event could result from such
action or failure to act. In addition, prior to taking any action with respect
to the Grantor Trusts created hereunder, or causing the Trust Fund to take any
action, that is not expressly permitted under the terms of this Agreement, the
Master Servicer and the Special Servicer shall consult with the Tax
Administrator or its designee, in writing, with respect to whether such action
could cause an Adverse Grantor Trust Event to occur. The Tax Administrator may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not permitted by this Agreement,
but in no event at the cost or expense of the Trust Fund, the Tax Administrator
or the Trustee.
(f) If any tax is imposed on either of the Grantor Trusts created
hereunder, such tax, together with all incidental costs and expenses (including
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the Tax Administrator, if such tax arises out of or results from a breach by the
Tax Administrator of any of its obligations under this Section 10.02; (ii) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Section
10.02; (iii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article III or
this Section 10.02; (iv) the Trustee, if such tax arises out of or results from
a breach by the Trustee of any of its obligations under Article IV, Article VIII
or this Section 10.02; or (v) the portion of the Trust Fund constituting the
related Grantor Trust in all other instances.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders or any of the Non-Trust Mortgage Loan Noteholders, (i) to
cure any ambiguity, (ii) to correct, modify or supplement any provision herein
which may be inconsistent with any other provision herein or with the
description thereof in the Prospectus or the Prospectus Supplement, (iii) to add
any other provisions with respect to matters or questions arising hereunder
which shall not be inconsistent with the existing provisions hereof, (iv) to
relax or eliminate any requirement hereunder imposed by the REMIC Provisions if
the REMIC Provisions are amended or clarified such that any such requirement may
be relaxed or eliminated, (v) to relax or eliminate any requirement imposed by
the Securities Act or the rules promulgated thereunder if the Securities Act or
those rules are amended or clarified so as to allow for the relaxation or
elimination of that requirement; (vi) as evidenced by an Opinion of Counsel
delivered to the Master Servicer, the Special Servicer and the Trustee, either
(A) to comply with any requirements imposed by the Code or any successor or
amendatory statute or any temporary or final regulation, revenue ruling, revenue
procedure or other written official announcement or interpretation relating to
federal income tax laws or any such proposed action which, if made effective,
would apply retroactively to any of the REMIC Pools or the Grantor Trusts
created hereunder at least from the effective date of such amendment, or (B) to
avoid the occurrence of a prohibited transaction or to reduce the incidence of
any tax that would arise from any actions taken with respect to the operation of
any REMIC Pool or the Grantor Trusts created hereunder; (vii) as provided in
Section 5.02(d)(iv), to modify, add to or eliminate any of the provisions of
Section 5.02(d)(i), (ii) or (iii); (viii) to amend any provision of Section 8.15
as contemplated by Section 8.15(m); or (ix) to otherwise modify or delete
existing provisions of this Agreement; provided that such amendment (other than
any amendment for any of the specific purposes described in clauses (i), (ii),
(iv), (v), (vi), (vii) and (viii) above) shall not adversely affect in any
material respect the interests of any Certificateholder or Non-Trust Mortgage
Loan Noteholder, as evidenced by either an Opinion of Counsel delivered to the
Trustee and each other party hereto to such effect or, in the case of a Class of
Certificates to which a rating has been assigned by one or more Rating Agencies,
written confirmation from each applicable Rating Agency to the effect that such
amendment shall not result in an Adverse Rating Event with respect to any Class
of Certificates.
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights allocated to the affected
Classes for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on Mortgage Loans that are required to be
distributed on any Certificate, without the consent of the Holder of such
Certificate, or that are required to be distributed to any Non-Trust Mortgage
Loan Noteholder, without the consent of such Serviced Non-Trust Mortgage Loan
Noteholder, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates or the interests of any Non-Trust Mortgage
Loan Noteholder in a manner other than as described in the immediately preceding
clause (i), without the
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consent of the Holders of all Certificates of such Class or the consent of such
Serviced Non-Trust Mortgage Loan Noteholder, as the case may be, (iii) modify
the provisions of this Section 11.01, without the consent of the Holders of all
Certificates then outstanding and the consent of all of the Non-Trust Mortgage
Loan Noteholders, (iv) modify the provisions of Section 3.20 or the Servicing
Standard, without the consent of the Holders of all Regular Interest
Certificates then outstanding and the consent of all of the Serviced Non-Trust
Mortgage Loan Noteholders, or (v) modify the specified percentage of Voting
Rights which are required to be held by Certificateholders to consent, approve
or object to any particular action pursuant to any provision of this Agreement
without the consent of the Holders of all Certificates then outstanding.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.01(b),
Certificates registered in the name of any party hereto or any Affiliate thereof
shall be entitled to the same Voting Rights with respect to matters described
above as they would if any other Person held such Certificates, so long as the
subject amendment does not relate to increasing its rights or reducing or
limiting its obligations hereunder as a party to this Agreement.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the party seeking such amendment) addressed to the Trustee and each other
party hereto, to the effect that (i) such amendment or the exercise of any power
granted to the Trustee, the Master Servicer or the Special Servicer in
accordance with such amendment will not result in the imposition of a tax on any
REMIC Pool pursuant to the REMIC Provisions, cause any REMIC Pool to fail to
qualify as a REMIC or cause either Grantor Trust created hereunder to fail to
qualify as a Grantor Trust at any time that any Certificates are outstanding and
(ii) such amendment complies in all material respects with the provisions of
this Section 11.01.
(d) Promptly after the execution of any such amendment, the Trustee
shall send a copy thereof to each Certificateholder and each Non-Trust Mortgage
Loan Noteholder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer and the Trustee
may but shall not be obligated to enter into any amendment pursuant to this
section that affects its rights, duties and immunities under this Agreement or
otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 11.01(a)
or (c) shall be payable out of the Pool Custodial Account, in the case of the
Master Servicer and the Special Servicer, pursuant to Section 3.05(a), or out of
the Collection Account, in the case of the Trustee, pursuant to Section 3.05(b).
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SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund or, to the
extent that it benefits them, the Serviced Non-Trust Mortgage Loan Noteholders,
but only upon direction accompanied by an Opinion of Counsel (the cost of which
may be paid out of the Pool Custodial Account pursuant to Section 3.05(a) or, to
the extent that it benefits the Serviced Non-Trust Mortgage Loan Noteholders,
out of the Loan Combination Custodial Accounts pursuant to Section 3.05A,
Section 3.05B, Section 3.05C and Section 3.05D), to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders and/or the Serviced Non-Trust Mortgage Loan Noteholders;
provided, however, that the Trustee shall have no obligation or responsibility
to determine whether any such recordation of this Agreement is required.
(b) For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder (except as expressly provided for herein)
shall have any right to vote or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Person previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any
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provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this section, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.04. Governing Law; Consent to Jurisdiction.
This Agreement will be governed by and construed in accordance with
the laws of the State of New York, applicable to agreements negotiated, made and
to be performed entirely in said state. To the fullest extent permitted under
applicable law, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and any Fiscal Agent each hereby irrevocably (i) submits to the
jurisdiction of any New York State and federal courts sitting in New York City
with respect to matters arising out of or relating to this Agreement; (ii)
agrees that all claims with respect to such action or proceeding may be heard
and determined in such New York State or federal courts; (iii) waives the
defense of an inconvenient forum; and (iv) agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to: (i) in the case of the Depositor, Structured
Asset Securities Corporation II, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx Xxxx--LB-UBS Commercial Mortgage Trust 2004-C2, facsimile
number: (000) 000-0000; (ii) in the case of the Master Servicer, Midland Loan
Services, Inc., 00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for
deliveries) and X.X. Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000 (for
communications by United States mail), Attention: President, facsimile number:
(000) 000-0000; (iii) in the case of the Special Servicer, Midland Loan
Services, Inc., 00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for
deliveries) and X.X. Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000 (for
communications by United States mail), Attention: President, facsimile number:
(000) 000-0000; (iv) in the case of the Trustee, Xxxxx Fargo Bank, N.A., at the
address for the Corporate Trust Office, Attention: Corporate Trust
Services--LB-UBS Commercial Mortgage Trust 2004-C2, facsimile number: (410)
715-2380; (v) in the case of the Underwriters, (A) Xxxxxx Brothers, Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxx--LB-UBS
Commercial Mortgage Trust 2004-C2, facsimile number: (000) 000-0000, and (B) UBS
Securities LLC, 1285 Avenue of the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx Xxxxx, facsimile number: (000) 000-0000, with a copy to Xxxxxx
X. Xxxxxxxxxx, General Counsel; (vi) in the case of the Rating Agencies, (A)
Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Commercial Mortgage Surveillance, facsimile number: (000) 000-0000,
and (B) Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: CMBS Surveillance Department, facsimile number: (000) 000-0000; and
(vii) in the case of the initial Controlling Class Representative, Anthracite
Capital, Inc., 00 Xxxx 00 Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
Xxxx, facsimile number: (000) 000-0000; 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
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Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Grant of a Security Interest.
The Depositor and the Trustee agree that it is their intent that the
conveyance of the Depositor's right, title and interest in and to the Trust
Mortgage Loans pursuant to this Agreement shall constitute a sale and not a
pledge of security for a loan. If such conveyance is deemed to be a pledge of
security for a loan, however, the Depositor and the Trustee agree that it is
their intent that the rights and obligations of the parties to such loan shall
be established pursuant to the terms of this Agreement. The Depositor and the
Trustee also intend and agree that, in such event, (i) in order to secure
performance of the Depositor's obligations hereunder and payment of the
Certificates, the Depositor shall be deemed to have granted, and does hereby
grant, to the Trustee (in such capacity) a first priority security interest in
the Depositor's entire right, title and interest in and to the assets
constituting the Trust Fund, including the Trust Mortgage Loans, all principal,
interest and other amounts received or receivable with respect to the Trust
Mortgage Loans after the Closing Date (other than principal and interest
payments due and payable prior to the Cut-off Date, and other than any Principal
Prepayments received on or prior to the Cut-off Date), all amounts (other than
those allocable to the Serviced Non-Trust Mortgage Loans and/or any successor
REO Mortgage Loans with respect thereto) held from time to time in the Custodial
Accounts, the Collection Account, the Interest Reserve Account, the Excess
Liquidation Proceeds Account and, if established, the REO Account(s) and the
Defeasance Deposit Account and any 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 the Trust
Mortgage Loans, and (ii) this Agreement shall constitute a security agreement
under applicable law. The Depositor shall file or cause to be filed, as a
precautionary filing, a Form UCC-1, which shall include a Schedule I
substantially in the form attached as Exhibit J hereto, in the State of Delaware
promptly following the initial issuance of the Certificates, and the Trustee
shall prepare, execute and file at each such office, with the consent of the
Depositor hereby given, continuation statements with respect thereto, in each
case within six months prior to the fifth anniversary of the immediately
preceding filing. The Depositor shall cooperate in a reasonable manner with the
Trustee and the Master Servicer in preparing and filing such continuation
statements. This Section 11.07 shall constitute notice to the Trustee pursuant
to any of the requirements of the UCC.
SECTION 11.08. Xxxxxx Act.
Any provisions required to be contained in this Agreement by Section
126 of Article 4-A of the New York Real Property Law are hereby incorporated
herein, and such provisions shall be in addition to those conferred or imposed
by this Agreement; provided, however, that to the extent that such Section 126
shall not have any effect, and if said Section 126 should at any time be
repealed or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, said Section
-367-
126 shall cease to have any further effect upon the provisions of this
Agreement. In case of a conflict between the provisions of this Agreement and
any mandatory provisions of Article 4-A of the New York Real Property Law, such
mandatory provisions of said Article 4-A shall prevail, provided that if said
Article 4-A shall not apply to this Agreement, should at any time be repealed,
or cease to apply to this Agreement or be construed by judicial decision to be
inapplicable, such mandatory provisions of such Article 4-A shall cease to have
any further effect upon the provisions of this Agreement.
SECTION 11.09. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. Each
Underwriter shall be a third party beneficiary to this Agreement solely with
respect to its right to receive the reports, statements and other information to
which it is entitled hereunder, to preserve such Underwriter's rights under
Sub-Servicing Agreements as contemplated by Section 3.22(d) and, in the case of
Xxxxxx Brothers, to terminate the Trust Fund pursuant to Section 9.01. Each of
the Sub-Servicers that is a party to a Sub-Servicing Agreement in effect on the
Closing Date (or being negotiated as of the Closing Date and in effect within 90
days thereafter) shall be a third party beneficiary to the obligations of a
successor Master Servicer under Section 3.22, provided that the sole remedy for
any claim by a Sub-Servicer as a third party beneficiary pursuant to this
Section 11.09 shall be against a successor Master Servicer solely in its
corporate capacity and no Sub-Servicer shall have any rights or claims against
the Trust Fund or any party hereto (other than a successor Master Servicer in
its corporate capacity as set forth in this Section 11.09) as a result of any
rights conferred on such Sub-Servicer as a third party beneficiary pursuant to
this Section 11.09. The Non-Trust Mortgage Loan Noteholders and any designees
thereof acting on behalf of or exercising the rights of the Non-Trust Mortgage
Loan Noteholders shall be third-party beneficiaries to this Agreement with
respect to their rights as specifically provided for herein. The GIC Office
Master Servicer shall be a third-party beneficiary to this Agreement with
respect to its rights as specifically provided for herein and under the GIC
Office Co-Lender Agreement. This Agreement may not be amended in any manner that
would adversely affect the rights of any such third party beneficiary without
its consent. This Agreement may not be amended in any manner that would
materially and adversely affect the rights of any such third-party beneficiary
without its consent. No other Person, including any Mortgagor, shall be entitled
to any benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.10. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.11. Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default or GIC Office Event
of Default that has not been cured;
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(iii) the resignation or termination of any Fiscal Agent, the
Master Servicer or the Special Servicer;
(iv) the repurchase of Trust Mortgage Loans by the Depositor or
the UBS Mortgage Loan Seller pursuant to or as contemplated by Section
2.03;
(v) any change in the location of the Collection Account or the
Interest Reserve Account;
(vi) the final payment to any Class of Certificateholders; and
(vii) any sale or disposition of any Trust Mortgage Loan or REO
Property.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of any Custodial Account.
(c) The Special Servicer shall furnish each Rating Agency with respect
to a Specially Serviced Mortgage Loan such information as the Rating Agency
shall reasonably request and which the Special Servicer can reasonably provide
in accordance with applicable law, with copies to the Trustee.
(d) To the extent applicable, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency copies of the
following items:
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14; and
(iii) any Officer's Certificate delivered by it to the Trustee
pursuant to Section 3.11(h) or 4.03(c).
(e) The Trustee shall (i) make available to each Rating Agency, upon
reasonable notice, the items described in Section 8.14(b) and (ii) promptly
deliver to each Rating Agency a copy of any notices given pursuant to Section
7.03(a) or Section 7.03(b).
(f) The Trustee shall promptly deliver to each Rating Agency a copy of
each of the statements and reports described in Section 4.02(a) that is prepared
by it.
(g) The Master Servicer shall give each of Moody's and S&P at least 15
days notice prior to any reimbursement to it of Nonrecoverable Advances from
amounts in the Pool Custodial Account allocable to interest on the Trust
Mortgage Loans unless (1) the Master Servicer determines in its sole discretion
that waiting 15 days after such a notice could jeopardize the Master Servicer's
ability to recover Nonrecoverable Advances, (2) changed circumstances or new or
different information becomes known to the Master Servicer that could affect or
cause a determination of whether any Advance is a Nonrecoverable Advance,
whether to defer reimbursement of a Nonrecoverable Advance
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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
shall give Moody's and S&P notice of an anticipated reimbursement to it of
Nonrecoverable Advances from amounts in the Pool Custodial Account allocable to
interest on the Trust Mortgage Loans as soon as reasonably practicable in such
circumstances. The Master Servicer shall have no liability for any loss,
liability or expense resulting from any notice provided to Moody's or S&P
contemplated by the immediately preceding sentence.
(h) Each of the Trustee, the Master Servicer and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Mortgage Loans and the Certificates, to the extent such party possesses
such information, as such Rating Agency shall reasonably request.
SECTION 11.12. Complete Agreement.
This Agreement embodies the complete agreement among the parties
and may not be varied or terminated except by a written agreement conforming to
the provisions of Section 11.01. All prior negotiations or representations of
the parties are merged into this Agreement and shall have no force or effect
unless expressly stated herein.
-370-
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.
STRUCTURED ASSET SECURITIES CORPORATION II
Depositor
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
MIDLAND LOAN SERVICES, INC.
Master Servicer and Special Servicer
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
XXXXX FARGO BANK, N.A.
Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 2nd day of April, 2004, before me, a notary public in and for
said State, personally appeared Xxxxx Xxxx, known to me to be a Senior Vice
President of STRUCTURED ASSET SECURITIES CORPORATION II, 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 Xxxxxxx
---------------------------------------
Notary Public
[Notarial Seal]
Xxxx Xxxxxxx
Notary Public, State of New York
No. 01LA6070349
Qualified in New York County
Commission Expires March 4, 2006
STATE OF KANSAS )
) ss.:
COUNTY OF XXXXXXX )
On the 2nd day of April, 2004, 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 XXXXX FARGO BANK, N.A., one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxxx
---------------------------------------
Notary Public
[Notarial Seal]
Xxxxxxx Xxxxxxx
Notary Public - State of Kansas
My Appt. Exp. 11/25/06
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 7th day of April, 2004, before me, a notary public in and for
said State, personally appeared Xxxxxxx X. Xxxxxxx, known to me to be a 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 Xxxxxxx
---------------------------------------
Notary Public
[Notarial Seal]
Xxxxx Xxxxxxx
Notary Public, State of New York
No. 01CO6088262
Qualified in Nassau County
Commission Expires 03/03/2007
SCHEDULE I
TRUST MORTGAGE LOAN SCHEDULE
SEE ATTACHED
TRUST MORTGAGE LOAN SCHEDULE
Mortgage
Loan
Number Property Name Address City State Zip Code
-------- ------------------------------------ --------------------------------------------- ------------------ ------- --------
1 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxx Xxxx XX 00000
2 GIC Office Portfolio Various Various Various Various
3 Somerset Collection 0000 Xxxx Xxx Xxxxxx Xxxx Xxxx XX 00000
4 Maritime Plaza I & II 0000 X Xxxxxx and 0000 00xx Xxxxxx, Xxxxxxxxx Xxxxxxxxxx XX 00000
5 Inland Center 000 Xxxxxx Xxxxxx Xxxxx Xxx Xxxxxxxxxx XX 00000
6 000 Xxxxx Xxxxxx 0-000 Xxxxx Xxxxxxxxx Xxxxx XX 00000
7 Farmers Market 0000 Xxxx Xxxxx Xxxxxx Xxx Xxxxxxx XX 00000
8 Xxxxxxx Yorkville Towers 1601, 1619, 1623 & 0000 Xxxxx Xxxxxx Xxx Xxxx XX 00000
9 Torrance Town Center 2731-2795 Pacific Coast Highway & 25343-25435 Xxxxxxxx XX 00000
Xxxxxxxx Xxxxxxxxx
00 Xxx Xxxxxxx at Manahawkin Commons 000 Xxxxxxxxxx Xxxxxx, 693, 701, 715, 733 and Xxxxxxxxxx XX 00000
000 Xxxxx 00 Xxxx
11 Voice Road Shopping Center Xxxxx Xxxx & Xxxx Xxxx Xxxx Xxxxx Xxxxx XX 00000
00 Xxxxxxxx Xxxxx Apartments 000 Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
13 0000 Xxxxx Xxxxxx 0000 Xxxxx Xxxxxx Xxx Xxxxxxxxx XX 00000
00 Xxxxxxx Xxx - Xxx Xxxxx 0000 Xxxxxxx Xxxxxxx Xxx Xxxxx XX 00000
00 Xxxxx Xxxxx Xxxx 000 Xxxxxxx 00 Xxxxxx Xxxxx XX 00000
16 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
00 Xxxxxxxx Xxxxxxx 00000 Xxxxx Xxxx Xxxxxx XX 00000
18 9350 Financial Center 0000 Xxxxx Xxxxx Xxxxxxx Xxxxx XX 00000
19 Portsmouth Station 10294-10404 Xxxxxxxxxx Xxxx Xxxxxxxx XX 00000
20 Vista del Rey Apartments 0000 Xxxxx Xxxx Xxxx Xxxxxx XX 00000
21 Hillsboro Executive Center North 000-000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxxx XX 00000
00 Xxxx Xxxxxxx 000 X. Xxxx Xxxxxxx Xxxx Xxx Xxxxx XX 00000
00 Xxxxxx Xxxxx Apartments and Villages 0000 Xxxxxxxxx Xxxxxx and 0000 Xxxxx Xxxx Xxxx Xxxxxxx XX 00000
of Westridge
24 274 Riverside 000 Xxxxxxxxx Xxxxxx Xxxxxxxx XX 00000
00 Xxxxxxxxxx Xxxxxxx XXX 0000 Xxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
26 Sunray Apartments 0000 Xxxxxx Xxxx Xxx Xxxxxxx XX 00000
27 The Atrium Office Building 00 Xxxxxxxxx Xxxx 000 Xxx Xxxxxxx XX 00000
28 The Terraces Office Building 00000 Xxxxxxx Xxxxxxxxx Xxxxxx Xxxx XX 00000
29 Eckerd Portfolio Various Various Various Various
30 Xxxxxx Building 000 Xxxxx Xxxxx Xxxxxx Xxx Xxxxxxx XX 00000
31 Brookdale Village Apartments 0000 Xxxx Xxxxxxx Xxxxxxx XX 00000
00 Xxxxxxxx Xxxx Shopping Center 000 Xxxx Xxxxxx Xxxxxxxxxxxx XX 00000
33 The Shoppes at Tiverton Crossing 000 X. Xxxxxxxx Xxx Xxxxxxxxx XX 00000
34 West Colonial Village Apartments 0000 Xxxxx 000xx Xxxxxx Xxxxxxx XX 00000
00 Xxxxx Xxxx Xxxxxx Xxxxxxxxx corner of Xxx Arbor Trail and Xxxxx Xxxxxxxx XX 00000
Xxxxxxxxxx Xxxx
00 Xxxxxx Xxxxxxx Retail Center 000-000 Xxxxx Xxxxxx Xxxxxxx Xxxxxxxx XX 00000
37 Palms Retail Center 0000-0000 Xxxxx Xxxxxxxxx Xxxxxxxxx Xxx Xxxx XX 00000
38 Bermuda Run Apartments 0000 Xxxxxxxxx Xxxx Xxxxxxxx Xxxxxxx XX 00000
00 Xxxxxx Xxxxxxx Apartments 0000 Xxxxxx Xxxx Xxxxxx XX 00000
00 Xxxxxx Xxxxxxxxxx Xxxx 000 Xxxx Xxxxxx Xxxxxx Xxxxxx XX 00000
41 Shops at Cumberland Place 0000-0000 Xxxxxxxxxx Xxxxxx, XX Xxxxxx XX 00000
00 Xxxxx Xxxxxxx Xxxxx 00000 Xxxxxxx Xxxxxx Xxxx Xxxxx Xxxxxxx XX 00000
Mortgage
Loan
Number Property Name Address City State Zip Code
-------- ------------------------------------ --------------------------------------------- ------------------ ------- --------
43 Fort Self Storage 0000 Xxxxx Xxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000
00 Xxxxxxxx Xxxxxx 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxx XX 00000
00 Xxxxxxxxx - Xxxxxxxx Xxxxxx 0000 Xxxx Xxxxxxxx Xxxxxx Xxx Xxxxx XX 00000
00 Xxxxxxxxx - Xxxxxxx Xxxxxx 0000 Xxxxx Xxxxxxx Xxxxxx Xxx Xxxxx XX 00000
47 Fairview Apartments 000 Xxxxxxxxx 0xx Xxxxxx Xxxxxxx Xxxxx XX 00000
48 Lakeside Office Complex 0000-0000 Xxxxx Xxxxx XX Xxxxxxx XX 00000
00 Xxxxxxx Xxxxxxx 0000 Xxxxxxxxx Xxxxxxxxx Xxx Xxxx XX 00000
00 Xxxxx Xxxx Xxxx Center 000 XX Xxxx 0000 Xxxxx Xxxx XX 00000
51 Walgreens - Weatherford 0000 Xxxx Xxxx Xxxxxx Xxxxxxxxxxx XX 00000
52 Walgreens - Pasadena 0000 Xxxxxxxx Xxxxxxx Xxxxxxxx XX 00000
53 Walgreens at Fort Xxxxx 0000 Xxxxxxx Xxxxxxx Xxxx Xxxxx XX 00000
00 Xxxxx Xxxx 0000 Xxxx Xxxxxx Xxxxx Xxxx Xxx XX 00000
00 Xxxxxxxxx Xxxxxxx 0000 Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000
56 Festival Center 0000 Xxxx Xxxxxxxx Xxxx and 0000 Xxxxx Xxx Xxxxx XX 00000
Decatur
57 McKinney Shopping Center 0000 Xxxxx Xxxxxxx Xxxxxxxxxx XxXxxxxx XX 00000
58 Falcon Town Center 7635 & 0000 XxXxxxxxxx Xxxx Xxxxxx XX 00000
00 Xxxxxx Xxx Xxxxxxx 0000 & 0000 Xxxxxx Xxx Xxxx Xxxxxxx XX 00000
60 Smoky Hill Self Storage 00000 Xxxx Xxxxx Xxxx Xxxx Xxxxxxxxxx XX 00000
61 Windsor Center 19000-19030 Xxxxxxx Xxxxxxxxx Xxxxxxx XX 00000
00 Xxxxxxxxxx Xxxxxx 000 Xxxx Xxxxxx Xxxxxxxxxxx XX 00000
00 Xxxxxx Xxxxx Apartments 000 Xxxx Xxxxxx Xxxxx Xxx Xxxxxxx XX 00000
64 Good Life and Windsor Heights MHP Various Various NY Various
65 River Run Plaza 6023, 6077 & 0000 Xxxxxx Xxxx & Xxxxx Xxxxx Xxxxxxxxxxx XX 00000
66 Greenspoint Self Storage 00000 Xxxxx Xxxxxxx Xxxxxxx XX 00000
67 0000 Xxxxx Xxxxxx 0000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
68 Fairways on the Green Apartments 0000 Xxxxxx Xxxxxxxxx Xxxxxx Xxxxx XX 00000
69 Acorn Self Storage 000 Xxxxxxxx Xxxx Xxxxxxxxx XX 00000
70 Storage Inn and Xxxxxxx Self Storage Various Xxxxxxxxxxxx XX 00000
00 Xxxxx Xxxx Xxx Apartments 000 X. 00xx Xxxxxx Xxxxxxxxxx XX 00000
00 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxx at XX 000 Xxxxxxxxx XX 00000
00 Xxxxxxxxxx Xxxxxxxxxxx Xxxxxxxxx Xxxxxxx Xxxxxxxxxx XX Various
00 Xxxx Xxxxxx Multifamily 00-00 Xxxx Xxxxxx and 00-00 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
75 Xxxxxx - Xxxxxxxxx 000 Xxxxx Xxxx Xxxxxx Xxxxxxxxx XX 00000
76 Iliff Village Shopping Center 0000 Xxxxx Xxxxxxxx Xxxx Xxxxxx XX 00000
00 Xxxxxxxx Xxxxx Apartments 000 Xxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
78 Pendleton Retail Center 000 XX 00xx Xxxxxx Xxxxxxxxx XX 00000
79 Plumtree Retail 0000-0000 Xxxxx Xxxxxxxxxx Xxxxxxx Xxxxx XX 00000
00 Xxxx Xxxxxxx Xxxxx 0000 Xxxx Xxxxxxxxxxx Xxxx Xxxxxxxxxx XX 00000
81 East Xxxxxxxx Apartments 000 Xxxx Xxxxxxxx Xxxx Xxxxxxxx XX 00000
82 1540 Xxxx Xxxxx 0000 X. Xxxx Xxxxx Xxx Xxxxx XX 00000
00 Xxxx Xxxxxx Apartments 000 Xxxx Xxxxxx Xxxxxxxxxx XX 00000
Mortgage
Loan Cut-off Date Monthly P&I Remaining term to
Number Balance Payment Mortgage Rate Maturity
-------- -------------- ----------- ------------- -----------------
1 187,500,000.00 718,039.28 4.53250 58
2 150,000,000.00 810,199.09 5.24679 118
3 125,500,000.00 512,047.26 4.82900 119
4 77,200,000.00 431,095.37 5.35000 120
5 54,000,000.00 211,585.94 4.63750 59
6 47,853,248.92 276,618.20 5.63500 117
7 45,000,000.00 244,742.33 5.11500 120
8 44,905,671.54 262,321.99 5.74000 118
9 36,000,000.00 212,608.60 5.86000 116
10 31,000,000.00 183,872.32 5.90000 84
11 24,336,579.73 152,623.44 6.40000 177
12 20,500,000.00 82,272.86 4.75000 60
13 18,000,000.00 106,189.37 5.85000 60
14 17,000,000.00 117,347.63 6.74000 120
15 15,000,000.00 93,011.06 5.60000 120
16 14,982,951.97 91,481.36 6.16000 119
17 14,800,000.00 85,430.90 5.65000 119
18 12,969,334.52 70,663.37 5.11000 58
19 12,966,503.36 81,656.55 6.44000 177
20 12,240,000.00 77,447.04 5.81000 117
21 11,976,105.51 72,023.23 6.01000 118
22 11,250,000.00 65,580.50 5.74000 120
23 10,940,354.85 61,151.84 5.31000 115
24 10,500,000.00 63,522.54 5.78000 82
25 10,250,000.00 55,337.86 5.05000 84
26 10,060,000.00 63,653.37 5.81000 117
27 8,231,528.22 46,274.81 5.39000 58
28 7,680,000.00 44,720.87 5.73000 120
29 7,530,000.00 34,073.25 5.43000 120
30 6,885,915.73 40,838.16 5.88000 118
31 6,735,027.65 38,072.04 5.44000 58
32 6,232,144.81 40,575.03 6.08000 118
33 5,981,599.01 34,520.45 5.62000 81
34 5,886,414.71 32,543.48 5.24000 82
35 5,788,539.01 34,960.60 6.05000 118
36 5,700,000.00 32,830.41 5.63000 120
37 5,393,517.92 31,581.58 5.77000 119
38 5,234,604.87 33,537.58 5.91000 118
39 5,193,495.30 29,459.81 5.48000 119
40 5,129,032.97 33,687.03 6.16000 117
41 5,107,289.83 32,733.16 6.61000 177
42 4,985,718.79 29,849.06 5.96000 117
43 4,790,659.36 29,180.83 6.13000 142
44 4,330,530.57 24,374.13 5.37000 55
45 4,286,537.53 24,468.91 5.52000 57
46 4,194,776.13 23,899.87 5.52000 59
47 4,104,571.01 25,033.55 6.12500 56
48 3,991,694.35 23,444.66 5.79000 118
Mortgage
Loan Remaining Amortization
Number Maturity Date Term Interest Accrual Basis
-------- ------------- ---------------------- ----------------------
1 1/11/2009 0 Act/360
2 1/8/2014 360 Act/360
3 2/11/2014 0 Act/360
4 3/11/2034 360 Act/360
5 2/11/2009 0 Act/360
6 12/10/2013 357 Act/360
7 3/11/2014 360 Act/360
8 1/11/2034 358 Act/360
9 11/11/2013 360 Act/360
10 3/11/2011 360 Act/360
11 12/11/2033 357 Act/360
12 3/11/2009 0 Act/360
13 3/11/2009 360 Act/360
14 3/11/2014 300 Act/360
15 3/11/2014 300 Act/360
16 2/11/2014 359 Act/360
17 2/1/2014 360 Act/360
18 1/11/2009 358 Act/360
19 12/11/2033 357 Act/360
20 12/11/2013 300 Act/360
21 1/11/2014 358 Act/360
22 3/11/2014 360 Act/360
23 10/11/2013 355 Act/360
24 1/11/2011 331 Act/360
25 3/11/2011 360 Act/360
26 12/11/2013 300 Act/360
27 1/11/2009 358 Act/360
28 3/11/2014 360 Act/360
29 3/11/2014 0 30/360
30 1/11/2014 358 Act/360
31 1/11/2009 358 Act/360
32 1/11/2014 298 Act/360
33 12/11/2010 357 Act/360
34 1/11/2011 358 Act/360
35 1/11/2014 358 Act/360
36 3/11/2014 360 Act/360
37 2/11/2014 359 Act/360
38 1/11/2014 298 Act/360
39 2/1/2014 359 Act/360
40 12/11/2013 297 Act/360
41 12/11/2018 357 Act/360
42 12/11/2013 357 Act/360
43 1/11/2016 358 Act/360
44 10/11/2008 355 Act/360
45 12/11/2008 357 Act/360
46 2/11/2009 359 Act/360
47 11/11/2008 356 Act/360
48 1/11/2014 358 Act/360
Mortgage
Loan Cut-off Date Monthly P&I Remaining term to Remaining Amortization
Number Balance Payment Mortgage Rate Maturity Maturity Date Term Interest Accrual Basis
-------- ------------ ----------- ------------- ----------------- ------------- ---------------------- ----------------------
49 3,945,412.63 23,694.95 6.00500 119 2/11/2014 359 Act/360
50 3,779,129.00 22,576.97 5.94000 117 12/11/2013 357 Act/360
51 3,681,631.21 21,768.76 5.86000 119 2/11/2014 359 Act/360
52 3,595,709.02 21,168.98 5.82000 119 2/11/2034 359 Act/360
53 3,589,409.99 21,168.98 5.82000 117 12/11/2013 357 Act/360
54 3,580,271.22 21,075.56 5.76000 113 8/11/2013 353 Act/360
55 3,467,987.46 20,700.52 5.94000 118 1/11/2014 358 Act/360
56 3,392,805.20 19,712.07 5.69000 82 1/11/2011 358 Act/360
57 3,290,889.37 20,040.49 6.12000 117 12/11/2013 357 Act/360
58 3,240,717.21 19,401.89 5.96000 117 12/11/2013 357 Act/360
59 3,155,775.66 19,100.33 6.07000 118 1/11/2014 358 Act/360
60 2,991,376.79 17,851.73 5.93000 117 12/11/2013 357 Act/360
61 2,696,864.33 16,196.55 6.00500 119 2/11/2014 359 Act/360
62 2,600,000.00 15,172.89 5.75000 120 3/11/2014 360 Act/360
63 2,550,000.00 16,134.80 5.81000 117 12/11/2013 300 Act/360
64 2,545,956.69 16,625.08 6.12500 119 2/11/2014 299 Act/360
65 2,444,970.45 14,453.55 5.85000 118 1/11/2014 358 Act/360
66 2,444,305.92 13,438.09 5.19000 58 1/11/2009 358 Act/360
67 2,400,000.00 17,056.18 5.90000 120 3/11/2014 240 Act/360
68 2,396,187.66 15,625.01 6.11000 119 2/11/2014 299 Act/360
69 2,250,000.00 14,141.30 5.74000 120 3/11/2014 300 Act/360
70 2,100,000.00 14,442.91 6.70000 120 3/11/2014 300 Act/360
71 2,045,678.34 11,911.20 5.71000 118 1/11/2014 358 Act/360
72 1,996,009.97 11,991.01 6.00000 118 1/11/2014 358 Act/360
73 1,725,000.00 10,044.73 5.73000 120 3/11/2014 360 Act/360
74 1,700,000.00 11,361.95 6.39000 120 3/11/2014 300 Act/360
75 1,527,495.16 9,727.29 5.86000 119 2/11/2014 299 Act/360
76 1,420,981.24 8,561.93 6.02000 117 12/11/2013 357 Act/360
77 1,388,863.42 9,296.75 6.39000 119 2/11/2014 299 Act/360
78 1,348,420.04 8,050.59 5.95000 119 2/11/2014 359 Act/360
79 1,294,203.96 8,068.76 5.61000 117 12/11/2013 297 Act/360
80 1,197,619.67 7,217.77 6.03000 118 1/11/2014 358 Act/360
81 1,149,232.06 7,692.71 6.39000 119 2/11/2014 299 Act/360
82 799,063.72 4,770.72 5.95000 119 2/11/2014 359 Act/360
83 756,835.72 5,066.09 6.39000 119 2/11/2014 299 Act/360
Mortgage
Loan Administrative Primary Mortgage Loan Anticipated
Number Cost Rate Servicing Fee Ground Lease Seller Defeasance ARD Mortgage Loan Repayment Date
-------- -------------- ------------- ------------ ------------- ----------------- ----------------- --------------
1 0.0319 0.0300 Fee Simple LB Defeasance No N/A
2 0.0319 0.0300 Fee Simple LB Defeasance No N/A
3 0.0319 0.0300 Fee Simple LB Defeasance No N/A
4 0.0319 0.0300 Leasehold UBS Defeasance Yes 3/11/2014
5 0.0319 0.0300 Fee Simple/ LB Defeasance No N/A
Leasehold
6 0.0319 0.0300 Fee Simple LB Defeasance No N/A
7 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
8 0.0319 0.0300 Fee Simple LB Defeasance Yes 1/11/2014
9 0.0869 0.0850 Leasehold LB Defeasance No N/A
10 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
11 0.0319 0.0300 Fee Simple LB Defeasance Yes 12/11/2018
12 0.0319 0.0300 Fee Simple LB Defeasance No N/A
13 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
14 0.0319 0.0300 Fee Simple LB Defeasance No N/A
15 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
16 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
17 0.0319 0.0300 Fee Simple LB Defeasance No N/A
18 0.1169 0.1150 Fee Simple/ LB Defeasance No N/A
Leasehold
19 0.0319 0.0300 Fee Simple LB Defeasance Yes 12/11/2018
20 0.0319 0.0300 Fee Simple LB Defeasance No N/A
21 0.1169 0.1150 Fee Simple LB Defeasance No N/A
22 0.0319 0.0300 Fee Simple LB Defeasance No N/A
23 0.0319 0.0300 Fee Simple LB Defeasance No N/A
24 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
25 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
26 0.0319 0.0300 Fee Simple LB Defeasance No N/A
27 0.1169 0.1150 Fee Simple LB Defeasance No N/A
28 0.0319 0.0300 Fee Simple LB Defeasance No N/A
29 0.0319 0.0300 Fee Simple UBS Yield Maintenance No N/A
30 0.1169 0.1150 Fee Simple LB Defeasance No N/A
31 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
32 0.0319 0.0300 Fee Simple LB Defeasance No N/A
33 0.0319 0.0300 Fee Simple LB Defeasance No N/A
34 0.0319 0.0300 Fee Simple LB Defeasance No N/A
35 0.0319 0.0300 Fee Simple LB Defeasance No N/A
36 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
37 0.0319 0.0300 Fee Simple LB Defeasance No N/A
38 0.1169 0.1150 Fee Simple LB Defeasance No N/A
39 0.0319 0.0300 Fee Simple LB Defeasance No N/A
40 0.0319 0.0300 Fee Simple LB Defeasance No N/A
41 0.0319 0.0300 Fee Simple LB Defeasance No N/A
42 0.0319 0.0300 Fee Simple LB Defeasance No N/A
43 0.0319 0.0300 Leasehold LB Defeasance No N/A
44 0.1169 0.1150 Fee Simple LB Defeasance No N/A
45 0.0319 0.0300 Fee Simple LB Defeasance No N/A
46 0.0319 0.0300 Fee Simple LB Defeasance No N/A
Mortgage
Loan Administrative Primary Mortgage Loan Anticipated
Number Cost Rate Servicing Fee Ground Lease Seller Defeasance ARD Mortgage Loan Repayment Date
-------- -------------- ------------- ------------ ------------- ----------------- ----------------- --------------
47 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
48 0.1169 0.1150 Fee Simple LB Defeasance No N/A
49 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
50 0.0319 0.0300 Fee Simple LB Defeasance No N/A
51 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
52 0.0319 0.0300 Fee Simple LB Defeasance Yes 2/11/2014
53 0.0319 0.0300 Fee Simple LB Defeasance No N/A
54 0.0319 0.0300 Fee Simple LB Defeasance No N/A
55 0.0969 0.0950 Fee Simple LB Defeasance No N/A
56 0.0319 0.0300 Fee Simple LB Defeasance No N/A
57 0.1169 0.1150 Fee Simple LB Defeasance No N/A
58 0.1169 0.1150 Fee Simple LB Defeasance No N/A
59 0.0319 0.0300 Fee Simple LB Defeasance No N/A
60 0.0319 0.0300 Fee Simple LB Defeasance No N/A
61 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
62 0.0319 0.0300 Fee Simple/ UBS Defeasance No N/A
Leasehold
63 0.0319 0.0300 Fee Simple LB Defeasance No N/A
64 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
65 0.1169 0.1150 Fee Simple LB Defeasance No N/A
66 0.1169 0.1150 Fee Simple LB Defeasance No N/A
67 0.1169 0.1150 Fee Simple LB Defeasance No N/A
68 0.1169 0.1150 Fee Simple LB Defeasance No N/A
69 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
70 0.0319 0.0300 Fee Simple UBS Yield Maintenance No N/A
71 0.0319 0.0300 Fee Simple LB Defeasance No N/A
72 0.0319 0.0300 Fee Simple LB Defeasance No N/A
73 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
74 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
75 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
76 0.1169 0.1150 Fee Simple LB Defeasance No N/A
77 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
78 0.1169 0.1150 Fee Simple LB Defeasance No N/A
79 0.0319 0.0300 Fee Simple LB Defeasance No N/A
80 0.1169 0.1150 Fee Simple LB Defeasance No N/A
81 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
82 0.1169 0.1150 Fee Simple LB Defeasance No N/A
83 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
Mortgage Credit Lease Loan
Loan (Tenant, Guarantor or Rated Mortgage Loan
Number ARD Spread party) Cross Collateralized Seller Loan ID
-------- ------------------------------------------- --------------------------- -------------------- --------------
1 N/A No No LG055
2 N/A No No LG050
3 N/A No No LG054
4 2% + Greater of (Contract Rate or Treasury) No No 10137
5 N/A No No 040108003
6 N/A No No 030613003
7 N/A No No 10040
8 5% + Greater of (Initial Rate or Treasury) No No LG053
9 N/A No No 030210011
10 N/A No No 10136
11 2% + Greater of (Initial Rate or Treasury) No No 030319001
12 N/A No No 031110006
13 N/A No No 10120
14 N/A No No 031118007
15 N/A No No 10199
16 N/A No No 9987
17 N/A No No 031210001
18 N/A No No 031007001
19 2% + Greater of (Initial Rate or Treasury) No No 030411009
20 N/A No Yes (LB-A) 031202001
21 N/A No No 030924007
22 N/A No No 031107001
23 N/A No No 030411008
24 N/A No No 10050
25 N/A No No 10128
26 N/A No Yes (LB-A) 031202002
27 N/A No No 031105008
28 N/A No No 031022002
29 N/A No No 10054
30 N/A No No 031110008
31 N/A No No 10048
32 N/A No No 030411001
33 N/A No No 030731001
34 N/A No No 031016009
35 N/A No No 030210002
36 N/A No No 9823
37 N/A No No 031022003
38 N/A No No 030122001
39 N/A No No 031204004
40 N/A No No 030624002
41 N/A No No 030723003
42 N/A No No 030528003
43 N/A No No 031015001
44 N/A No No 030724005
45 N/A No No 030728005
46 N/A No No 030728007
47 N/A No No 9749
48 N/A No No 030811008
Mortgage Credit Lease Loan
Loan (Tenant, Guarantor or Rated Mortgage Loan
Number ARD Spread party) Cross Collateralized Seller Loan ID
-------- ------------------------------------------- --------------------------- -------------------- --------------
49 N/A No No 10027
50 N/A No No 030718003
51 N/A No No 10088
52 2% + Greater of (Initial Rate or Treasury) No No 030415009
53 N/A No No 030916006
54 N/A No No 030625006
55 N/A No No 031105002
56 N/A No No 021022003
57 N/A No No 030918015
58 N/A No No 030930002
59 N/A No No 030827001
60 N/A No No 030812002
61 N/A No No 10028
62 N/A No No 10138
63 N/A No No 030612004
64 N/A No No 9825
65 N/A No No 030715004
66 N/A No No 031028003
67 N/A No No 031119003
68 N/A No No 030805001
69 N/A No No 10118
70 N/A No No 10108
71 N/A No No 030923001
72 N/A No No 030715005
73 N/A No No 10012
74 N/A No No 10042
75 N/A No No 10111
76 N/A No No 030821005
77 N/A No Yes (UBS-E) 10114a
78 N/A No Yes (LB-B) 031030005
79 N/A No No 030605005
80 N/A No No 031110007
81 N/A No Yes (UBS-E) 10114b
82 N/A No Yes (LB-B) 031030004
83 N/A No Yes (UBS-E) 10114c
SCHEDULE II
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR
The following are the exceptions for the Xxxxxx loans to the Representations and
Warranties for the above-referenced transaction:
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REPRESENTATION FROM SECTION 2.04 PROPERTY AND EXCEPTION
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(v) Loan Document Status 280 Metro Center; GIC Office Portfolio;
Inland Center; Portsmouth Station; Shops at
Cumberland Place; South Oaks; Voice Road
Shopping Center. An entity rather than
individual is carveout guarantor.
000 Xxxxx Xxxxxx; Chartley Park Shopping
Center; Xxxxxxx Yorkville Towers; The
Somerset Collection. There is no carveout
guarantor for these loans.
GIC Office Portfolio. Recourse carveout for
breach on environmental covenants is
qualified by "materiality".
Xxxxxx Building. The following are not
recourse carveouts for the guarantor (A)
breach of the environmental covenants, (B)
misapplication or misappropriation of rents,
insurance proceeds or condemnation awards
and (C) the filing of a voluntary bankruptcy
or insolvency proceeding.
Inland Center. Breach of the environmental
covenants is not a recourse carveout for the
guarantor.
South Oaks. Guarantor's liability is limited
to $3,200,000, the amount of the loan.
000 Xxxxx Xxxxxx; 000 Xxxxx Xxxxxx; Xxxxxxxx
Xxxx Shopping Center; GIC Office Portfolio;
Inland Center; Xxxxxx Building; Portsmouth
Station; Xxxxxxx Yorkville Towers; Shops at
Cumberland Place; The Somerset Collection;
South Oaks; Voice Road Shopping Center. With
respect to environmental carveouts and
environmental indemnitors see also the
entries with respect to these loans on
Schedule II (xix) "Environmental
Conditions".
--------------------------------------------------------------------------------
(viii) First Lien The Somerset Collection. The related
mortgage also secures The Somerset
Collection Non-Trust Mortgage Loans.
The construction of the parking
structure servicing The Somerset Collection
North was financed through a bond financing
with the local development authority; the
bonds are to be repaid from the tax
increment increase attributable to increased
property values in the vicinity and thus a
portion of each tax assessment against the
Somerset Collection North is applied to the
payment of the bonds. The development
authority which currently owns the parking
structure and ground leases the underlying
land from the related borrower's partner has
the further right to impose additional
assessments on the Somerset Collection North
in the event the ground lessor defaults in
its obligation to pay taxes, levied on the
ground leased premises or
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for utilities serving the ground leased
premises or fails to maintain or insure the
parking structure. The ground lease
obligates the ground lessor to purchase the
parking structure for a price which is based
in part on the then outstanding balance of
the bonds at the later of 25 years following
the commencement of the ground lease and the
date on which the bonds are no longer
outstanding, or sooner upon the occurrence
of certain events. In the event the ground
lessor fails to purchase the structure as
required, the development authority may
further assess The Somerset Collection North
in the amount of the purchase price owed and
add same to the real property tax xxxx next
due. All such assessments would be payable
in the same manner as, and would have the
same priority as, real property taxes. It
should be noted that the related borrower is
required to perform all of the obligations
of the ground lessor to maintain, repair and
operate pursuant to the terms of a separate
agreement between the related borrower and
the ground lessor. This separate agreement
was collaterally assigned to mortgagee in
connection with the loan closing
000 Xxxxx Xxxxxx. The related mortgage also
secures the 000 Xxxxx Xxxxxx Non-Trust
Mortgage Loan.
GIC Office Portfolio. The related mortgage
also secures the GIC Office Portfolio
Non-Trust Mortgage Loans.
--------------------------------------------------------------------------------
(x) No Material Damage Inland Center. The California Department of
Transportation has proposed designs for the
widening of Interstate 215, which is a
freeway located adjacent to the Inland
Center mortgaged real property. The proposed
engineering designs for such expansion
indicate that the existing on-ramp/off-ramp
to Interstate 215 at Inland Center Drive may
be replaced by a new off-ramp and related
improvements which may encroach on the
Inland Center mall, thereby reducing the
number of available parking spaces. It is
possible that, pursuant to an existing
development agreement with the City of San
Bernardino, a reciprocal easement agreement
with respect to the Inland Center mortgaged
real property and/or the terms of certain
anchor tenant leases at the Inland Center
mortgaged real property, the related
borrower may become obligated to replace
some or all of the eliminated parking
spaces. Sufficient information is not
currently available to confirm the nature or
extent of such potential obligation.
Further, there is no assurance that, in the
event such replacement parking is required,
the Inland Center borrower would find
acceptable parking facilities at an
alternative site or that any alternative
parking would satisfy the terms of the
foregoing development agreement, reciprocal
easement agreement or applicable anchor
tenant leases. It is uncertain at this time
as to whether or when the California
Department of Transportation will commence a
condemnation action or otherwise take steps
to acquire the aforementioned portion of the
Inland Center mortgaged real property to
facilitate the proposed road widening
designs
Vista Del Rey. A unit of the related
property sustained fire damage. 125% of the
costs of renovations were held back at
funding of the loan.
West Colonial Village Apartments. The
related property sustained fire damage to
approximately eight units. The fire damaged
units have not been repaired.
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(xi) Title Insurance The Somerset Collection; 000 Xxxxx Xxxxxx.
See Schedule 2.04(b)(viii) regarding the
lien of Non-Trust Mortgage Loans.
GIC Office Portfolio. The amounts of the
title insurance policies for all the related
mortgaged properties exceed the total amount
secured by the related mortgages
($825,000,000). The GIC Office Portfolio
Mortgage Loan represents a portion of such
indebtedness in the principal amount of
$150,000,000.
The Somerset Collection. In addition to the
right of the development authority to
further assess the related property (see
Schedule 2.04(b)(viii)), pursuant to the
ground lease and a subordination,
non-disturbance and attornment agreement
between mortgagee and the development
authority, in the event the authority is
prevented from receiving the purchase price
due to bankruptcy or insolvency of the
borrower or the ground lessor, the mortgagee
will be obligated to pay all delinquent real
property taxes assessed upon the Somerset
Collection North and thereafter maintain
such taxes current; provided, mortgagee's
total obligation for such taxes shall not
exceed $2,000,000. Per the ground lease and
the subordination, non-disturbance and
attornment agreement, such obligation to pay
taxes would constitute a personal obligation
of the mortgagee.
000 Xxxxx Xxxxxx. Pursuant to an air, light
and view easement agreement the original
owner and developer of the related property
was able to use certain development rights
appurtenant to the New York Public Library
which abuts the subject property and
increase the floor area of each floor of the
building located on the related mortgaged
property located above 162 feet, 6 inches
over the level of the curb at 00xx Xxxxxx by
4,375 square feet over the maximum area
which would otherwise be permitted by law.
Such easement is granted for so long as the
building erected on the 000 Xxxxx Xxxxxx
Mortgaged Property shall continue to stand.
In the event of a casualty that results in
the total destruction or demolition of the
building at 000 Xxxxx Xxxxxx, any structure
erected in replacement thereof would have to
either (1) contain less square footage on
any floors located above 162 feet, 6 inches
above the curb level of 00xx Xxxxxx in order
to comply with applicable law or (2) have
the benefit of a new air rights easement
granted by the then owner of the Library
property, conferring the right to use the
development rights appurtenant to the
Library. The easement agreement currently
requires a quarterly payment of $35,000 from
the land owner and any successor owner of
subject property is, by the terms of the
easement agreement, automatically upon
acquisition of such ownership personally
liable for such quarterly payments.
The New York City Transit Authority
holds a permanent and perpetual right-of-way
and easement in, through and upon the 000
Xxxxx Xxxxxx Mortgaged Property including
any building or buildings erected thereon
for and as a means of ingress and egress by
passengers of the New York City subways
through a designated entrance area at the
000 Xxxxx Xxxxxx Mortgaged Property.
Pursuant to the easement, the borrower is
required to maintain and keep open the
subway entrance at borrower's cost and
expense and in the event that the subway
entrance area is damaged or destroyed,
without substantial damage to the 000 Xxxxx
Xxxxxx Mortgaged Property, is obligated to
repair such entrance area at owner's
expense. If the 666 Fifth
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Avenue Mortgaged Property is substantially
or wholly demolished or destroyed during the
term of the easement agreement and is not
replaced or rebuilt, then the obligations
under such agreement shall terminate;
provided, however, that landowner shall
grant additional easements and/or cooperate
with the transit authority in replacing such
access way. The agreement further requires
the landowner to make an annual payment of
$2500 to the transit authority in exchange
for the benefit of having access to the
subway from the related property.
The related property is also subject to a
Distinctive Sidewalk Improvement Maintenance
Agreement relating to the maintenance of a
non-conforming distinctive curb and sidewalk
which fronts the 000 Xxxxx Xxxxxx Mortgaged
Property. Such agreement obligates the
landowner, at landowner's cost, to, among
other things, properly and lawfully
maintain, repair and replace the curb and
sidewalk. In the event of the borrower's
failure to perform in a satisfactory manner,
the City of New York may perform the
necessary maintenance work at the borrower's
cost, which costs if not reimbursed may
become a lien upon the related property
superior to any encumbrances recorded
against the property.
--------------------------------------------------------------------------------
(xii) Property Insurance 000 Xxxxx Xxxxxx. The related loan agreement
requires the Mortgagor to maintain business
interruption insurance in a coverage amount
equal to the greater of (a) the estimated
gross income from operations of the
property, for losses actually sustained or
(b) projected operating expenses (including
debt service) for the maintenance and
operation of the property, for losses
actually sustained. The related loan
documents require business interruption or
loss of rents insurance for a period
continuing until the restoration of the
applicable mortgaged property is completed
with an extended period of indemnity which
provides that after the physical loss to the
applicable mortgaged property has been
repaired, the continued loss of income will
be insured until such income either returns
to the same level it was at prior to the
loss, or the expiration of 365 days from the
date that the applicable mortgaged property
is repaired, whichever first occurs.
The related loan agreement provides
that: if 4 or fewer insurers have issued the
required policies, at least 75% must have a
financial strength of claims paying ability
rating of at least "AA-" and no such insurer
providing, in the aggregate, coverage in an
amount up to and including the greater of
(a) the outstanding principal amount of the
related loan and (b) the full replacement
cost of the related property may have a
rating of less than investment grade. If
five or more insurers have issued the
required policies, at least 60% of the
insurers must have a rating of at least
"AA-" and no insurer providing, in the
aggregate, coverage in an amount up to and
including the greater of (a) the outstanding
principal amount of the related loan and (b)
the full replacement cost of the related
property may have a rating of less than
investment grade.
Insurer agrees to endeavor to provide
30 days prior notice of cancellation, but
disclaims any liability or responsibility as
a result of any failure to provide such
notice.
GIC Office Portfolio. The related loan
documents require property damage insurance
on all improvements and personalty based on
the combined "full
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--------------------------------------------------------------------------------
replacement cost" (as defined in the related
loan documents) of the two largest
properties in the GIC Office Portfolio.
The related loan documents require
business interruption or loss of rents
insurance for a period continuing until the
restoration of the applicable mortgaged
property is completed with an extended
period of indemnity which provides that
after the physical loss to the applicable
mortgaged property has been repaired, the
continued loss of income will be insured
until such income either returns to the same
level it was at prior to the loss, or the
expiration of 180 days from the date that
the applicable mortgaged property is
repaired, whichever first occurs.
The related loan documents require
earthquake insurance in an amount equal to
1.5x the probable maximum loss for the
applicable mortgaged property, but only to
the extent such insurance is available at
commercially reasonable rates.
The related loan documents require that
(A) for so long as six or more insurance
carriers are providing the blanket insurance
polices required by the loan documents, at
least 60% of coverage shall be written with
insurance companies with a claims paying
ability/financial strength rating of "A-"
(or its equivalent) or better by S&P with
the remaining 40% of coverage being written
with insurance companies with a claims
paying ability/financial strength rating of
"BBB-" or better by S & P; provided,
however, with respect to the first
$200,000,000 of coverage under such blanket
policies, not more than 20% of such coverage
shall be written with insurance companies
with a claims paying ability/financial
strength rating of "A-" or lower (but in no
event lower than BBB-) and (B) in the event
that five or fewer insurance carriers are
providing the blanket policies, each
insurance company providing such coverage
shall have with a claims paying
ability/financial strength rating of "A-"
(or its equivalent) or better by S&P. The
terrorism and earthquake insurance carriers
must have a claims paying ability/financial
strength rating of "BBB-" (or its
equivalent) or better by S&P.
--------------------------------------------------------------------------------
(xvi) Subordinate Debt 000 Xxxxx Xxxxxx. Borrower's equity holder
has obtained a mezzanine loan in the amount
of $45,000,000 secured by a pledge of 100%
of the direct or indirect equity interests
in the borrower. In connection with the
mezzanine loan, the mezzanine lender has
executed an intercreditor agreement with the
lender.
The related Mortgage also secures the
000 Xxxxx Xxxxxx Non-Trust Loan.
0000 Xxxx Xxxxx; Xxxxxxxxx Retail Center;
South Oaks. The related borrower's equity
holders have the right to obtain mezzanine
financing secured by a pledge of equity
interests in the borrower, subject to
certain criteria including, among others:
(A) execution of a subordination and
intercreditor agreement, (B) lender's review
and approval of the terms of the mezzanine
loan and the subordination and intercreditor
agreement, (C) the loan is made by a
"Qualified Mezzanine Lender" (as defined in
the loan documents); and (D) and
satisfaction of certain debt service
coverage ratio and combined loan
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
to value ratio requirements.
GIC Office Portfolio. Borrower's equity
holders have obtained a mezzanine loan in
the amount of $75,000,000 secured by a
pledge of 100% of the equity interests in
the borrower. In connection with the
mezzanine loan, the mezzanine lender has
executed an intercreditor agreement with the
lender.
The related Mortgages also secures the
GIC Office Portfolio Non-Trust Loans.
Xxxxxxxx Place Apartments.
(A) The related mortgage secures a
"Promissory Note A" in the amount of
$20,500,000 (included in the pool) and a
"Promissory Note B" in the amount of
$2,500,000 (not included in the pool). Both
notes are secured by the mortgage and the
Note B was transferred at closing to GDW
Capital Partners, LLC, and Xxxxxx and GDW
entered into an intercreditor and servicing
agreement with respect to both notes. The
notes are cross defaulted and it is
condition to defeasance of the A Note that
the B Note be simultaneously defeased.
(B) An affiliate of the four mortgage
borrower limited liability companies has
loaned $3,000,000 to the single member of
two of the four borrowing entities, secured
by a pledge of all of such member's
interests in the two borrower entities. The
affiliate lender has entered into an
intercreditor agreement with Xxxxxx.
Shops at Cumberland Place. The related
mortgage is collateral for both a
"Promissory Note A" in the amount of
$5,120,000 included in the pool and a
non-pool "Promissory Note B" in the amount
of $195,000. The notes are cross defaulted.
The Somerset Collection. The related
Mortgage also secures The Somerset
Collection Non-Trust Loans.
The Shops at Tiverton Crossing. The equity
holders of the first time transferee of the
borrower will have the right to obtain
mezzanine financing secured by a pledge of
equity interests in the borrower, subject to
certain criteria including, among others:
(A) execution of a subordination and
intercreditor agreement, (B) lender's review
and approval of the terms, (C) the loan is
made by a "Qualified Mezzanine Lender" (as
defined in the loan documents) or the
related borrower; (D) and satisfaction of
certain debt service coverage ratio and
combined loan to value ratio requirement's.
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(xix) Environmental Conditions 280 Metro Center; Chartley Park Shopping
Center; GIC Office Portfolio; Inland Center;
Portsmouth Station; Xxxxxxx Yorkville
Towers; Shops at Cumberland Place; South
Oaks; Voice Road Shopping Center. An entity
rather than an individual is the
environmental indemnitor.
000 Xxxxx Xxxxxx; Xxxxxx Building; Xxxxxxx
Yorkville Towers; The Somerset Collection.
The related borrower is the only
environmental indemnitor.
Arbor Town Square. The Phase I environmental
assessment was completed on
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March 18, 2003.
GIC Office Portfolio. The related loan
documents require the related borrower to
use commercially reasonable efforts to cause
all uses and operations on related
properties by parties other than the related
borrower or its affiliates to comply in all
material respects with all environmental
laws. The related loan documents require the
borrower to comply with environmental laws
in all material respects.
The related loan documents require the
implementation of the Phase I consultant's
recommendations within 12 months from
closing subject to excusable delays.
The related loan documents require the
implementation of the Phase I consultant's
recommendations within 24 months from
closing subject to excusable delays.
Inland Center. Xxxxxx Furniture has been
identified as the responsible party for a
petroleum release at an adjacent property
which may have impacted the related
mortgaged property. The Phase I
environmental consultant reported that it is
not known whether the related mortgaged
property has been impacted by the petroleum
release.
The Somerset Collection. Indemnified losses
exclude diminution in value of the related
mortgaged property.
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(xxiv) Whole Loan French Place Apartments; Xxxxxxx Yorkville
Towers; Sunray Apartments; Vista Del Ray
Apartments. One or more of loan seller
and/or loan seller's affiliates hold direct
or indirect equity ownership interest in the
related borrowers of this loans.
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(xxv) Due-on-Encumbrance 000 Xxxxx Xxxxxx; 0000 Xxxx Xxxxx; GIC
Office Portfolio; Xxxxxxxx Place Apartments;
Xxxxxxxxx Retail Center; South Oaks; The
Shops at Tiverton Crossing; The Somerset
Collection. With respect to subordinate debt
see also the entry with respect to these
loans on Schedule II (xvi) "Subordinate
Debt".
000 Xxxxx Xxxxxx. The related loan agreement
further permits the pledge of not more than
49% of the limited partner interest in the
related borrower ("666 Fifth Avenue Limited
Partner"), provided, that among other
conditions, (A) one or more Tishman Speyer
Control Persons (as defined in the related
loan agreement) shall retain and maintain
day to day control over the management of
the property, borrower and the 000 Xxxxx
Xxxxxx Limited Partner's and (B) prior to
any assignment of such interest upon
enforcement of the pledge, borrower shall
deliver a substantive non-consolidation
opinion reasonably satisfactory to the
mortgage or, if occurring after
securitization, to the Rating Agency.
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(xxvi) Due-on-Sale 280 Metro Center. A sale or transfer (but
not a pledge, hypothecation, creation of a
security interest in or other encumbrance)
of any direct or indirect interests in the
borrower are permitted subject to the
satisfaction of certain conditions
including, but not limited to, the
following: (A) such transfer is to a
"Permitted Owner" or is a "Approved
Affiliate Transfer" (both as defined in the
related
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loan agreement), (B) prior to any such
transfer as a result of which more than 49%
of the direct or indirect interests in
borrower will be transferred to a person or
entity that did not own at least 49% of such
interests as of the closing, borrower shall
deliver to lender and the applicable rating
agencies a non-consolidation opinion with
respect to the proposed transfer, (C) there
shall be no event of default continuing
under the related mortgage loan, and (D)
except in the case of an Approved Affiliate
Transfer, receipt of rating agency approval
with respect to any such transfer.
000 Xxxxx Xxxxxx. The related loan documents
permit:
(A) the sale of all or any portion of
TST 000 Xxxxx Xxxxxx, L.L.C.'s limited
partnership interest in the 000 Xxxxx Xxxxxx
Limited Partner, provided, among other
conditions, that (a) one or more Tishman
Speyer Control Persons retains and maintains
control over day to day management and
operation of the related property, the
borrower and the 000 Xxxxx Xxxxxx Limited
Partner, (b) one or more Tishman Speyer
Control Persons or a fund or entity directly
or indirectly controlled by such persons,
holds collectively or individually, not less
than 5% of the direct or indirect equity
interests in the related borrower and the
000 Xxxxx Xxxxxx Limited Partner, (c) each
transferee of such interest is either an
Institutional Investor (as defined in the
related loan agreement), a Tishman Speyer
Control Person, or a fund or entity directly
or indirectly controlled by one or more such
persons, or an affiliate of or entity
controlled by or under common control with
one or more of the entities which as of the
closing date were limited partners of the
000 Xxxxx Xxxxxx Limited Partner; and (d)
borrower delivers a substantive
non-consolidation opinion satisfactory to
all of the Rating Agencies rating
certificates issued in respect of any
portion of the 000 Xxxxx Xxxxxx Loan Pair.
(B) the sale of any direct or indirect
interest in any limited or general partner
of the 000 Xxxxx Xxxxxx Limited Partner
and/or any direct or indirect interest in
the affiliated Property Manager; provided
that, among other conditions, that (a) one
or more Tishman Speyer Control Persons
retains and maintains control over day to
day management and operation of the related
property and borrower and (b) one or more
Tishman Speyer Control Persons or a fund or
entity directly or indirectly controlled by
such persons, holds collectively or
individually, not less than 5 % of the
direct or indirect equity interests in
borrower and the 000 Xxxxx Xxxxxx Limited
Partner;
(C) the sale of all or any portion of
non Tishman Speyer affiliated limited
partnership interests and/or non-managing
general partner interests in the 000 Xxxxx
Xxxxxx Limited Partner; provided, among
other conditions, (a) one or more Tishman
Speyer Control Persons or a successor
thereto approved by the mortgagee retains
and maintains control over day to day
management and operation of the related
property and borrower, (b) (x) one or more
Tishman Speyer Control Persons or a fund or
entity directly or indirectly controlled by
such persons, holds collectively or
individually, not less than 5% of the direct
or indirect equity interests in borrower and
the 000 Xxxxx Xxxxxx Limited Partner or (y)
such other direct or indirect equity holder
in the 000 Xxxxx Xxxxxx Limited Partner
approved by the mortgagee in accordance with
the related mortgage shall hold a minimum
percentage as required by the mortgagee
direct or indirect in each of the related
borrower and the 666 Fifth
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Avenue Limited Partner; (d) each transferee
of such interest is either an Institutional
Investor, a Tishman Speyer Control Person or
a fund or entity directly or indirectly
controlled by one or more such persons or an
affiliate of or entity controlled by or
under common control with one or more of the
entities which as of the closing date were
limited or general partners of the 000 Xxxxx
Xxxxxx Limited Partner; and (e) borrower
delivers a substantive non-consolidation
opinion satisfactory to all Rating Agencies
rating certificates issued in respect of any
portion of the 000 Xxxxx Xxxxxx Loan Pair;
(D) the transfer of interests between
the two general partners of the 000 Xxxxx
Xxxxxx Limited Partner and/or their
affiliates who are 000 Xxxxx Xxxxxx Limited
Partner limited partners, provided, among
other conditions, that (a) such sale is made
in accordance with the requirements of the
000 Xxxxx Xxxxxx Limited Partner's limited
partnership Agreement, (b) neither the
borrower nor its general partner's status as
a bankruptcy remote entity shall be
affected; (c) the property manager as of the
closing date shall continue to manage the
property unless replaced by a "Qualified
Manager" (as defined in the related loan
agreement); (d) the mortgagee receives
confirmation from the applicable rating
agency rating any of the certificates issued
in respect of any portion of the 000 Xxxxx
Xxxxxx Loan Pair that such sale will not
result in a downgrade, qualification or
withdrawal of the ratings then assigned to
such certificates and (e) borrower or the
000 Xxxxx Xxxxxx Limited Partner delivers a
substantive non-consolidation opinion
satisfactory to each Rating Agencies rating
any of the certificates issued in respect of
any portion of the 000 Xxxxx Xxxxxx Loan
Pair;
(E) a one time transfer of the property
to a transferee satisfying the
single-purpose and bankruptcy remote
criteria established in the related loan
agreement and who is wholly owned or
controlled by or is an Institutional
Investor, provided, among other conditions,
that (a) such transferee assume all of the
borrower's obligations under the related
loan documents, (b) the property is managed
by a Qualified Manager, (c) the Rating
Agencies rating any of the certificates
issued in respect of any portion of the 000
Xxxxx Xxxxxx Loan Pair confirms in writing
that such transfer and assumption will not
result in a downgrade, qualification or
withdrawal of the ratings then assigned to
such certificates, and (d) the 000 Xxxxx
Xxxxxx Mezzanine Lender has either consented
to such transfer or the 000 Xxxxx Xxxxxx
Mezzanine Loan has been repaid in full; and
(F) any sale of the equity interests in
the related borrower in connection with the
enforcement of the 000 Xxxxx Xxxxxx
Mezzanine Loan; provided at the time of such
sale, the related borrower or the 000 Xxxxx
Xxxxxx Mezzanine Lender delivers a
nonconsolidation opinion satisfactory to
mortgagee or, if after a securitization has
occurred, to the each Rating Agencies rating
any of the certificates issued in respect of
any portion of the 000 Xxxxx Xxxxxx Loan
Pair.
9350 Financial Center. The following
transfers are permitted under the related
mortgage loan documents: transfers
(excluding collateral pledges) of direct or
indirect ownership interests in borrower by
and among Xxxxxx X. Xxxxx, Xxxxxxx Xxxxx,
Xxxxxx X. Xxxxx and Xxxx Xxxx so long as
Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxx shall
continue to control borrower following any
such
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transfer.
Chartley Park Shopping Center. Xxxx X.
Xxxxxxxxxxx or J. Xxxx Xxxxxxxx may transfer
their individual interests in the related
borrower provided that, among others, such
transfer is to an entity owned and
controlled by such person.
Xxxxxxxxx Commons. related borrower
permitted to transfer or sell more than 49%
of the membership interest in related
borrower to ICI - SB Xxxxxxxxx Xxxxxxx, LP
so long as (A) Land Capital Holdings, LP and
Xxxxx Xxxxxxx, (B) International Capital,
Inc., either directly or through an entity
controlled by it, or (C) ICI-SB Corporation,
as general partner of ICI-SB Xxxxxxxxx
Xxxxxxx, L.P. continues to control related
borrower following transfer.
French Place Apartments; Sunray Apartments;
Vista Del Rey Apartments. The sale or pledge
of any direct or indirect ownership interest
VR SVF Holding Limited Partnership among VR
SVF Limited Partnership and LB SVF LLC or
their Permitted Transferees (as defined in
the related loan documents), provided that,
among others, after transfer the ownership
and management of the related borrower
remains under the control of either Xxxx
Xxxxxx and Xxxxxx Xxxxxxx or Xxxxxx Brothers
Holdings Inc.
GIC Office Portfolio. The related loan
documents permit the sale of the related
properties subject to certain conditions,
including among others: (A) transferee is a
special purpose entity and a Qualified
Equityholder, (B) lender's receipt of a
nonconsolidation opinion; (C) transferee's
assumption of the obligations of the related
borrower; and (D) the related property
continues to be managed by a Qualifying
Manager (as defined in the related loan
documents).
The related loan documents provide that
lender consent is not required for the
transfer of indirect interests in the
borrower provided that at all times during
the term of the loan, Qualified
Equityholders (as defined in the related
loan documents) must, among other criteria:
(A) continue to control the borrower and
own, directly or indirectly, at least a
fifty-one percent (51%) interest in the
borrower and (B) continue to be the
beneficiaries of at least fifty-one percent
(51%) of the distributions from the
mortgaged properties.
The related loan documents provide that
lender consent is not required for
immaterial transfers of portions of the
related property at the periphery or
perimeter of such property to governmental
authorities for dedication or public use in
lieu of a contemplated or threatened
condemnation.
With respect to transfer of property
see also the entry with respect to this loan
on Schedule II (xxx) "Property Release".
Inland Center. The following are permitted
transfers: (i) assignments of all or part of
the interests in Xxxxxx Street Managers IV,
L.P. ("Managers IV"); (ii) transfers of not
more than 49% of the direct or indirect
equity interests in the borrowing entities,
provided that after any such transfer Xxxxxx
Street Real Estate Fund IV, L.P. ("Fund
IV"), Xxxxxx Street Real Estate Fund IV
(Private Investors), L.P. ("Fund IV Private
Investors") or Xxxxxx Real Estate Investors
IV, LP shall remain in control of the
borrowing entities; (iii) transfers of
direct
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or indirect interests in the borrowing
entities among each of the foregoing
entities, so long as, in each instance,
borrowers, each of the foregoing entities
and Managers IV are controlled directly or
indirectly by at least 3 of the "Existing
Shareholders" (as defined in the related
deed of trust); (iv) transfers of not more
than 10% of the direct or indirect equity
interests in the borrowing entities to First
Plaza Group Trust, a NY trust; (v) transfers
of all or a portion of the interests in the
borrowing entities between Macerich and Fund
IV or entities controlled by Macerich or
Fund IV (and of which Macerich or Fund IV
own directly or indirectly at least 51% of
the equity interests); and (vi) a transfer
of any direct or indirect interest in the
borrowing entities owned by Macerich to an
entity that Macerich controls and in which
it owns directly or indirectly at least 51%
of the equity interests; provided, however,
in the event that any transfer results in
any party (that did not own at least 49% of
such interest prior to such transfer) owning
in excess of 49% of the ownership interest
in the borrowing entities, any guarantor,
any indemnitor or any general or limited
partner, member or non-member manager of any
borrowing entity, guarantor, indemnitor or
"SPE Member" (as defined in the related deed
of trust), the borrowing entities shall,
prior to such transfer deliver to lender and
the applicable rating agencies a
non-consolidation opinion in form and
substance satisfactory to the same.
Xxxxxxxx Place Apartments. Each of Xxxxx
Xxxxxxxx Place, LLC, Xxxxx Xxxxxxxx Place
II, LLC, and Xxxx Xxxxxxxx Place, LLC
(collectively, the "Co-Borrowers"),
individually has the right to convey its
tenancy-in-common interest in the Property
to Xxxxxxxx Place 212, LLC in fee simple
(the "Roll Up") at any time without cost,
fee or other restriction of any kind (other
than compliance with all applicable law) in
exchange for a reasonably equivalent equity
interest in Xxxxxxxx Place 212, LLC.
Xxxxxx Way Station. A transfer or sale of
more than 49% of the membership interest in
the related borrower permitted provided
that, among others, Xxxx X. Xxxxx continues
to manage and control the related borrower
following such transfer.
Xxxxxxx Yorkville Towers. Transfers between
the partners of Yorkville Tower Associates
Limited Partnership shall be permitted
provided that at all times, either Xxxxxxxxx
XxXxxxxxx Family Limited Partnership, Xxxx
X. XxXxxxxxx Associates LLC, Xxxxxxxx
XxXxxxxxx Family Limited Partnership or Ruyo
Associates controls borrower and owns,
directly or indirectly, at least a 15%
beneficial interest in borrower.
South Oaks. The sale or transfer (including
the pledge or collateral assignment thereof,
except as specified below) of equity
interests in a Restricted Party (as defined
in the related loan documents) do not
require lender's consent so long as the
following conditions are satisfied, among
others: (A) at all times following such
transfer, (1) a Qualified Equity Owner (as
defined in the related loan documents) shall
be the direct or indirect owner of at least
25% of the equity interests in the related
borrower and (2) either or both of Xxxxxxx
Xxxxxx and Xxxxxxx Xxxxxxxx shall control
the related borrower; (B) if such transfer
shall result in any person or entity
initially acquiring more than a forty-nine
percent (49%) direct or indirect equity
interest in the related borrower, the
related borrower shall provide a
non-consolidation opinion reasonably
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acceptable to lender with respect to such
person; and (3) provided that in no event
shall any such sale or transfer result in a
breach of the last two paragraphs of the
non-recourse carveout guaranty pertaining to
Xxxxxxxx Xxxxxx Ltd. The permitted sale or
transfer of equity interests in a Restricted
Party does not include the collateral
assignment or grant of a security interest
in the related borrower, Xxxxxxxx Xxxxxx &
Company Shopping Center Opportunity Fund
LLC, Xxxxxxxx Xxxxxx & Company Shopping
Center Opportunity Fund Managing Member LLC
or of any direct or indirect majority or
controlling interest in the related
borrower.
The Somerset Collection. The related loan
agreement permits transfer of the related
property without consent of mortgagee or
Rating Agencies provided, among other
conditions, that (A) transferee is a
Sponsor, Sponsor Affiliate or Permitted
Owner (as such terms are defined in the
related loan agreement) or an entity owned
and controlled (at least 50% direct or
indirect) by a Sponsor, Sponsor Affiliate or
Permitted Owner, (B) transferee is a single
purpose entity, (C) transferee assumes all
of related borrower's obligations under the
related loan documents; (D) the property
continues to be managed by a Qualified
Manager; and (E) the borrower delivers a new
enforceability, corporate and insolvency
opinions.
The related loan agreement permits the
sale or transfer (but not the pledge or
hypothecation) of any direct or indirect
interest in borrower provided, among other
conditions, that (A) borrower shall be
controlled and at least 50% owned (directly
or indirectly) by either a Sponsor, Sponsor
Affiliate or Permitted Owner, (B) in the
event of a transfer of more than 49% of the
direct or indirect interests in borrower to
a party not owning at least 49%, direct or
indirect, of the interests in borrower as of
the closing date, a new substantive
nonconsolidation opinion shall be delivered,
(C) the property shall continue to be owned
by a special purpose entity and (D) the
property shall continue to be managed by a
Qualified Manager.
The related loan agreement does not
prohibit sales, conveyances, transfers,
pledges or grants of security interests
(other than pledges or grants of security
interests of direct interests in the
borrower) of direct or indirect interests in
Sponsor, certain types of Permitted Owners
(i.e. those, other than Sponsor and Sponsor
Affiliates) or other persons owning directly
or indirectly interests in Borrower so long
as following the transfer of such other
person's interest, at least 50% of the
direct and/or indirect ownership interests
in borrower are owned by Sponsor, a Sponsor
Affiliate or a Permitted Owner and provided
that prior to any transfer described herein
which results in a transfer of more than 49%
of the direct or indirect ownership interest
in borrower being transferred to a person
not owning such interest as of closing,
borrower shall deliver an additional
substantive non-consolidation opinion.
Voice Road Shopping Center The related
borrower is involved in a "reverse 1031
exchange" (the "Exchange"). Pursuant to the
related loan documents, the related borrower
has represented and warranted that , among
other matters, (i) its sole member is
Building Exchange Company, a wholly owned
subsidiary of LandAmerica Financial Group,
Inc., that owns no other assets other than
its membership interest in the related
borrower (the "Exchange Entity"), (ii)
within six (6) months of the date hereof,
related borrower shall transfer the
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entire related mortgaged property in a
single transfer to one or more (but not more
than ten (10)) Xxxxxx Entities (as defined
in the loan documents), as tenants in common
(if more than one Xxxxxx Entity), (iii)
simultaneously with such transfer, each
Xxxxxx Entity acquiring an interest in the
related mortgaged property shall execute and
deliver to Lender an assumption and
modification agreement (the "Assumption
Agreement") (except that, if only one Xxxxxx
Entity shall acquire an interest in the
Property, the provisions of Sections 5.1
through and including 5.10 of the Assumption
Agreement shall not apply), (iv) if more
than one Xxxxxx Entity acquires an interest
in the related mortgaged property, Lender
shall have approved the tenancy in common
agreement of the Xxxxxx Entities, which
approval shall not be unreasonably withheld,
(v) related borrower shall deliver, at its
sole cost and expense, an endorsement to the
existing title policy insuring the related
Mortgage, as modified, naming the applicable
Xxxxxx Entity or Entities as owners of the
related mortgaged property and insuring the
absence of any exceptions to title or liens
other than those contained in the title
policy issued at the closing of the related
mortgage loan, (vi) the Lender shall have
received an updated insolvency opinion from
Xxxxx Xxxxxx Xxxxxx LLP acceptable in all
respects to Lender, (vii) simultaneously
with such transfer, each Xxxxxx Entity shall
execute, deliver and/or caused to be filed
such UCC Financing Statements as Lender may
require, and (viii) simultaneously with such
transfer, related borrower shall
indefeasibly pay in full the unsecured loan
made by Xxxxxxx Xxxxxx.
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(xxvii) Mortgagor Concentration 000 Xxxxx Xxxxxx. Original aggregate
principal balance of $187,500,000,
representing 15.2% of the Initial Pool
Balance.
GIC Office Portfolio. Original aggregate
principal balance of $150,000,000,
representing 12.1% of the Initial Pool
Balance.
The Somerset Collection. Original aggregate
principal balance of $125,500,000,
representing 10.2% of the Initial Pool
Balance.
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(xxiii) Waivers; Modifications 000 Xxxxx Xxxxxx. The related loan has been
modified pursuant to a Modification of Loan
Agreement dated as of _______ pursuant to
which the related promissory note has been
split into two notes. The related borrower
has executed two replacement notes.
GIC Office Portfolio. Pursuant to Second
Amendment to Loan Agreement and Ratification
of Guaranty of Recourse Obligations of
Borrower and Environmental Indemnity
Agreement dated as of ___________,
provisions relating to substitution of
properties modified to permit the earlier
substitution of two of the related
properties. See "Property Release" -
Schedule 2.04(b)(xxx).
Voice Road. Pursuant to letter agreement
dated as of March 25, 2004, the related
mortgagee has approved a form of
tenant-in-common agreement and has agreed
enter into an assumption agreement in
connection with the transfer of the related
property in connection with the Exchange.
See "Due on Sale"--Schedule 2.04(b)(xxvi).
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(xxx) Property Release GIC Office Portfolio. In the event that the
lender does not make any insurance proceeds
available for restoration, the borrower may
obtain a release of a mortgaged property at
any time during the term of the loan upon
satisfaction of specified conditions
including, but not limited to, satisfaction
of certain debt service coverage ratio
requirements and the prepayment of 125% of
the allocated loan amount for such mortgaged
property.
Commencing on December 10, 2005 (or
with respect to 00 Xxxxx Xxxxxx and Plaza
East, December 10, 2004), the related
borrowers have the right to obtain the
release of one or more of the mortgaged
properties by substituting one or more other
office buildings of like kind and quality
upon satisfaction of certain conditions
contained in the loan documents, including,
without limitation, (i) the value of the
substitute property is equal to or greater
than the property being released, (ii) the
debt service coverage ratio of all the
mortgaged properties after the substitution
is equal to or greater than the debt service
coverage ratio for the mortgaged properties
as of the closing of the loan and the debt
service coverage ratio of the mortgaged
properties prior to the substitution, (iii)
the loan must at all times be secured by
eight or more mortgaged properties, (iv) the
combined allocated loan amounts of all
substituted mortgaged properties shall not
be more than thirty percent (30%) of the
original principal balance of GIC Office
Portfolio Mortgage Loan and the GIC Office
Portfolio Non-Trust Loans, (v) neither the
USG Building (as defined in the related loan
documents) nor the AT&T Corporate Center (as
defined in the related loan documents) shall
be subject to a substitution, and (vi)
certain other geographical concentration
requirements.
Inland Center. The related borrower has the
right to obtain a release from the lien of
the related deed of trust of those portions
of the property described on Exhibit C
thereto (the "Release Parcels") in
connection with the transfer of such parcels
to a bona fide third party in an arm's
length transaction, and subject to the
satisfaction of certain conditions
including, but not limited to, the
following: (i) no event of default shall
exist at the time of or be caused by such
release; (ii) borrower shall have delivered
to lender such title endorsements as lender
shall reasonably determine are necessary to
confirm that its existing coverage will
remain effective for the remaining property
following the release; (iii) borrower shall
cause to be created and insured under
lender's title policy such reciprocal
easement agreements for ingress, egress,
parking and utilities over the Release
Parcels as lender may reasonably require;
(iv) the release shall not constitute a
prohibited transaction for or contribution
after the start up date to a "REMIC Trust";
(v) at the time of any such release the
remaining property shall constitute one or
more lawfully subdivided parcels, consisting
of separate tax lots and in compliance in
all material respects with applicable zoning
laws; and (vi) borrower shall prepay the
principal amount of the note in an amount
equal to 100% of the net sales proceeds
received by borrower and all accrued and
unpaid interest on the amount prepaid.
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(xxxi) Qualifications; Licensing; 000 Xxxxx Xxxxxx. Pursuant to a recorded
Zoning air, light and view easement agreement the
original owner and developer of 000 Xxxxx
Xxxxxx was able to use certain development
rights appurtenant to the New York Public
Library which abuts the subject property and
increase the floor are of each floor of the
building located on the related mortgaged
property located above 162 feet, 6
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--------------------------------------------------------------------------------
inches over the level of the curb at 00xx
Xxxxxx by 4,375 square feet over the maximum
area which would otherwise be permitted by
law. Such easement confers no right upon the
Owner of the related mortgaged property to
build within the air space above the public
library and is granted for so long as the
building erected on the 000 Xxxxx Xxxxxx
Mortgaged Property shall continue to stand.
In the event of a casualty that results in
the total destruction or demolition of the
building at 000 Xxxxx Xxxxxx, any structure
erected in replacement thereof would have to
either (1) contain less square footage on
any floors located above 162 feet, 6 inches
above the curb level of 00xx Xxxxxx in order
to comply with applicable law or (2) have
the benefit of a new air rights easement
granted by the then owner of the Library
property, conferring the right to use the
development rights appurtenant to the
Library.
280 Metro; Xxxxxxxx Place Apartments; Xxxxxx
Building. The related mortgage property
constitutes a legal nonconforming use.
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(xxxii) Property Financial 000 Xxxxx Xxxxxx. The related loan agreement
Statements requires borrower to deliver, quarterly,
certified rent rolls and unaudited balance
sheets and operating statements and,
annually, audited financial statements
together with a balance sheet.
The Somerset Collection. The related loan
agreement requires borrower to provide,
quarterly, rent roll, unaudited operating
statements and calculation reflecting debt
service coverage ratio as of the last day of
the applicable quarter and, annually, an
audited financial statement.
Walgreens - Cheyenne Avenue; Walgreens -
Eastern Avenue. Operating Statements to be
delivered annually for the first year, then
bi-annually for the balance of the term of
the related loan.
Walgreens at Fort Xxxxx. Operating
Statements to be delivered annually.
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(xxxv) Legal Proceedings 000 Xxxxx Xxxxxx. The party from whom
borrower acquired title to the related
property is the named defendant in one or
more lawsuits initiated by tenants of the
000 Xxxxx Xxxxxx Mortgaged Property,
Citibank, N.A. and DCA Advertising, Inc., in
which such tenants claim that the landlord
under their leases failed to perform its
obligations thereunder to timely provide tax
statements and to adjust the rent in
accordance with such leases. In connection
with the borrower's acquisition of the
related property from such named defendant
and pursuant to the purchase agreement ("666
Fifth Avenue Purchase Agreement") between
such parties, the borrower obtained an
indemnity from the seller against any
claims, costs, losses, expenses or damages
incurred by borrower in connection with the
claims of such tenant that their rent should
be reduced by an amount equal to such
tenants' pro rata share of the decrease in
the real estate tax from the base taxes set
forth in their respective leases. Pursuant
to the 000 Xxxxx Xxxxxx Purchase Agreement,
the seller thereunder to secure its faithful
performance under the indemnity, delivered
to the 000 Xxxxx Xxxxxx borrower an
irrevocable letter of credit in the amount
of $3,000,000. Said letter of credit is
transferable pursuant to its terms to any
successor to the related borrower's interest
in the 000 Xxxxx Xxxxxx property. The 000
Xxxxx Xxxxxx loan documents provide that
upon the occurrence of an event of default
under the 000 Xxxxx Xxxxxx loan, the lender
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
may request that such letter of credit be
delivered to lender.
--------------------------------------------------------------------------------
(xxxviii) Cross-Collateralization 000 Xxxxx Xxxxxx. The related mortgage also
secures the 000 Xxxxx Xxxxxx Non-Trust Loan.
GIC Office Portfolio. The related mortgage
also secures the GIC Office Portfolio
Non-Trust Loans.
Xxxxxxxx Place Apartments. The related
mortgage is collateral for both a
"Promissory Note A" in the amount of
$20,500,000 included in the pool and a
non-pool "Promissory Note B" in the amount
of $2,500,000. The notes are cross defaulted
and the Note B was transferred at closing to
GDW Capital Partners, LLC. Xxxxxx and GDW
entered into an intercreditor and servicing
agreement with respect to both notes.
Shops at Cumberland Place. The related
mortgage is collateral for both a
"Promissory Note A" in the amount of
$5,120,000 included in the pool and a
non-pool "Promissory Note B" in the amount
of $195,000. The notes are cross defaulted.
The Somerset Collection. The related
mortgage also secures The Somerset
Collection Non-Trust Loans.
--------------------------------------------------------------------------------
(xl) Engineering Assessments Arbor Town Square. The property condition
assessment was completed on March 18, 2003.
--------------------------------------------------------------------------------
(xliv) Fee Simple GIC Office Portfolio. The related mortgages
encumbering properties in Pennsylvania and
Wisconsin encumber both leasehold and fee
interests.
Inland Center. The related mortgage loan is
secured by the one of the two co-borrower's
ground leasehold interest in a portion of
the related mortgaged property and its fee
interest in another portion of the related
mortgaged property. See also the entry on
Schedule II (xlv)
--------------------------------------------------------------------------------
(xlv) Leasehold Interest Only Inland Center. One of the two related
co-borrowers, WM Inland (May) IV, LLC, holds
its interest in a portion of the related
mortgaged property (consisting of
approximately 14.4 acres improved with the
Xxxxxxxxxx'x Department Store, a parking
parcel containing approximately 1684 stalls
and one or more outparcel buildings)
pursuant to a triple-net ground sublease.
The related borrower sub-ground leases the
parcel (as "Sublessee", a
successor-in-interest to the previous owner
of the related mortgaged property) pursuant
to a sublease agreement with The May
Department Stores Company (the "Sublease").
The May Department Stores Company (the "Sub
Landlord") leases the property pursuant to a
primary ground lease (the "Primary Lease")
from May Centers, Inc. (the "Prime
Landlord"). Memorandums of both the Primary
Lease and the Sublease have been recorded
and both leases are on the same terms. The
Primary Lease and the Sublease expire in
September of 2017 and include fourteen (14)
separate five (5) year extension options.
The rent under the leases is fixed until the
beginning of the fifth (5th) renewal term at
$374,886 per year, payable quarterly.
Pursuant to a separately recorded
Non-Disturbance and Attornment Agreement the
Prime Landlord has agreed, so long as the
sublessee is not then in default, to
recognize and not disturb the
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
rights of a sublessee under the Sublease in
the event that the Primary Lease terminates
for any reason. Additionally, pursuant to
their express terms the Primary Lease and
the Sublease are freely assignable, upon
thirty (30) days notice and without the
Prime Landlord's or Sub Landlord's consent;
provided, however, that any such assignment
without the consent of the respective
landlords shall not release the assigning
tenant from any of its obligations under
such lease. In the event of a default under
the related mortgage loan the related
lender, foreclosing its lien on the related
mortgage property, could under the terms of
the Prime Lease and Sub Lease, take an
assignment of the related borrower's
interest as Sublessee under the Sublease.
However, neither the Prime Lease or the
Sublease contains any provisions relating to
a mortgage of the lessee's interest therein
and neither the Prime Landlord nor the Sub
Landlord has expressly consented to the
related mortgage loan transaction or granted
the related lender any rights with respect
to the Primary Lease or the Sublease.
Therefore, in the event of a default by the
related borrower as Sublessee under the
Sublease, the related lender has no right to
notice or an opportunity to cure any such
default and in the event that the Sublease
is terminated the related lender has no
right to enter into a new lease, on the same
terms with the Sub Landlord. The Sublease
therefore does comply with the
representations set forth in sections
(xlv)(A), (C), (F), (H), (I), (J) and (L).
--------------------------------------------------------------------------------
(li) Due Date GIC Office Portfolio. Payments are due on
the 8th of the month.
Sunset Terrace; Woodland Xxxxxxx. Payments
are due on the 1st of the month.
--------------------------------------------------------------------------------
(liv) No Ownership Interest in French Place Apartments; Sunray Apartments;
Mortgagor Xxxxxxx Yorkville Towers; Vista Del Ray
Apartments. One or more of loan seller
and/or loan seller's affiliates hold a
direct or indirect equity ownership interest
in the related borrowers of these loans.
--------------------------------------------------------------------------------
(lv) Common Ownership French Place Apartments, Vista Del Rey
Apartments and Sunray Apartments. Each
borrowing entity is directly or indirectly
under common ownership.
GIC Office Portfolio. Each borrowing entity
is directly or indirectly under common
ownership. Some borrowing entities own more
than one of the properties in the portfolio.
Hampton Inn - San Diego and Fairways on the
Green Apartments. Each borrowing entity is
directly or indirectly under common
ownership.
Xxxxxxxxx Retail Center and 0000 Xxxx Xxxxx.
Each borrowing entity is directly or
indirectly under common ownership.
Portsmouth Station, Shops at Cumberland
Place and Voice Road Shopping Center. Each
borrowing entity is directly or indirectly
under common ownership.
The Terraces Office Building and Palms
Retail Center. Each borrowing entity is
directly or indirectly under common
ownership.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Walgreens - Eastern Avenue and Walgreens -
Cheyenne Avenue. Each borrowing entity is
directly or indirectly under common
ownership.
--------------------------------------------------------------------------------
SCHEDULE III
SCHEDULE OF ENVIRONMENTALLY INSURED MORTGAGE LOANS
NONE
SCHEDULE IV
REFERENCE RATE SCHEDULE
Interest Accrual Periods by Interest Accrual
Numerical Order Period Beginning in: Reference Rate
--------------------------- -------------------- --------------
1 March 2004 5.40340%
2 April 2004 5.22648%
3 May 2004 5.40300%
4 June 2004 5.22610%
5 July 2004 5.40260%
6 August 2004 5.40242%
7 September 2004 5.22553%
8 October 2004 5.40201%
9 November 2004 5.22513%
10 December 2004 5.22581%
11 January 2005 5.22562%
12 February 2005 5.22298%
13 March 2005 5.40086%
14 April 2005 5.22401%
15 May 2005 5.40041%
16 June 2005 5.22356%
17 July 2005 5.39994%
18 August 2005 5.39973%
19 September 2005 5.22290%
20 October 2005 5.39926%
21 November 2005 5.22244%
22 December 2005 5.22309%
23 January 2006 5.22287%
24 February 2006 5.22026%
25 March 2006 5.39799%
26 April 2006 5.22121%
27 May 2006 5.39748%
28 June 2006 5.22072%
29 July 2006 5.39697%
30 August 2006 5.39673%
31 September 2006 5.21999%
32 October 2006 5.39621%
33 November 2006 5.21948%
34 December 2006 5.22009%
35 January 2007 5.21985%
36 February 2007 5.21730%
37 March 2007 5.39482%
38 April 2007 5.21813%
39 May 2007 5.39427%
40 June 2007 5.21760%
41 July 2007 5.39372%
42 August 2007 5.39345%
43 September 2007 5.21681%
44 October 2007 5.39289%
45 November 2007 5.21626%
46 December 2007 5.39232%
47 January 2008 5.21658%
48 February 2008 5.21468%
49 March 2008 5.39142%
Interest Accrual Periods by Interest Accrual
Numerical Order Period Beginning in: Reference Rate
--------------------------- -------------------- --------------
50 April 2008 5.21484%
51 May 2008 5.39083%
52 June 2008 5.21426%
53 July 2008 5.39023%
54 August 2008 5.38995%
55 September 2008 5.21340%
56 October 2008 5.38943%
57 November 2008 5.21027%
58 December 2008 5.21013%
59 January 2009 5.36457%
60 February 2009 5.42578%
61 March 2009 5.60653%
62 April 2009 5.42353%
63 May 2009 5.60616%
64 June 2009 5.42318%
65 July 2009 5.60579%
66 August 2009 5.60561%
67 September 2009 5.42264%
68 October 2009 5.60523%
69 November 2009 5.42228%
70 December 2009 5.42328%
71 January 2010 5.42310%
72 February 2010 5.41997%
73 March 2010 5.60422%
74 April 2010 5.42130%
75 May 2010 5.60382%
76 June 2010 5.42091%
77 July 2010 5.60341%
78 August 2010 5.60321%
79 September 2010 5.42032%
80 October 2010 5.59907%
81 November 2010 5.41992%
82 December 2010 5.41049%
83 January 2011 5.41028%
84 February 2011 5.40689%
EXHIBIT A-1
FORM OF CLASS [A-1] [A-2] [A-3] [A-4] CERTIFICATES
LB-UBS COMMERCIAL MORTGAGE TRUST 2004-C2
CLASS [A-1] [A-2] [A-3] [A-4] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE,
SERIES 2004-C2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Pass-Through Rate: [___% per annum] Initial Certificate Principal Balance of this Certificate
as of the Closing Date:
$________________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [A-1] [A-2] [A-3]
March 11, 2004 [A-4] Certificates as of the Closing Date:
$________________
Cut-off Date: March 11, 0000 Xxxxxxxxx unpaid principal balance of the Mortgage Pool as
of the Cut-off Date, after deducting payments of principal
Closing Date: April 7, 2004 due on or before such date (the "Initial Pool Balance"):
$1,234,613,151
First Distribution Date: April 16, 2004
Master Servicer: Midland Loan Services, Inc. Trustee: Xxxxx Fargo Bank, N.A.
Special Servicer: Midland Loan Services, Inc.
Certificate No. [A-1] [A-2] [A-3] [A-4]-___ CUSIP No.: _____________
A-1-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, IF THE PURCHASE OR HOLDING OF THIS CERTIFICATE OR SUCH INTEREST
HEREIN WOULD RESULT IN A VIOLATION OF SECTION 406 OR 407 OF ERISA OR SECTION
4975 OF THE CODE OR WOULD RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER
SECTION 4975 OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, MIDLAND LOAN SERVICES, INC., XXXXX FARGO BANK,
N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling
A-1-2
and Servicing Agreement, dated as specified above (the "Agreement"), between
Structured Asset Securities Corporation II, as depositor (the "Depositor", which
term includes any successor entity under the Agreement), Midland Loan Services,
Inc. as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Midland Loan Services, Inc., as special
servicer (the "Special Servicer", which term includes any successor entity under
the Agreement) and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event of any conflict between any provision of this
Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs; provided that the initial Record Date will be
the Closing Date. All distributions made under the Agreement in respect of this
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions no less than five (5)
Business Days prior to (or, in the case of the first such distribution, no later
than) the Record Date for such distribution (which wiring instructions may be in
the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
A-1-3
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[FOR BOOK ENTRY CERTIFICATES:] Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all
A-1-4
purposes, and none of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust. The Agreement permits, but does not require, the Depositor, Xxxxxx
Brothers Inc., the Master Servicer, the Special Servicer or any Controlling
Class Certificateholder to purchase from the Trust all Mortgage Loans and any
REO Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than approximately 1.0% of the aggregate Certificate
Principal Balance of all the Principal Balance Certificates as of the Closing
Date. In addition, following the date on which the total principal balance of
the Class X-0, X-0, X-0, A-4, B, C, D, E, F and G Certificates is reduced to
zero, any single Holder or group of Holders of all of the remaining Certificates
may, with the consent of the Master Servicer and subject to such other
conditions as may be set forth in the Agreement, exchange those Certificates for
all Mortgage Loans and REO Properties remaining in the Trust Fund at the time of
the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of any REMIC Pool as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-1-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
XXXXX FARGO BANK, N.A.,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] [A-3] [A-4] Certificates referred
to in the within-mentioned Agreement.
Dated:
--------------
XXXXX FARGO BANK, N.A.,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________
______________________________________________________________________
______________________________________________________________________
(please print or typewrite name and address including postal zip code
of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address: ___________________
______________________________________________________________________
______________________________________________________________________
Dated:
----------------------------------------
Signature by or on behalf of Assignor
----------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________
for the account of ___________________________________________________
Distributions made by check (such check to be made payable to_________
______________________) and all applicable statements and notices
should be mailed to __________________________________________________
_____________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS [X-CL] [X-CP] CERTIFICATE
LB-UBS COMMERCIAL MORTGAGE TRUST 2004-C2
CLASS [X-CL] [X-CP] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2004-C2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Pass-Through Rate: Variable Initial Certificate Notional Amount of this
Certificate as of the Closing Date:
$____________
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class [X-CL]
March 11, 2004 [X-CP] Certificates as of the Closing Date:
$____________
Cut-off Date: March 11, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
Closing Date: April 7, 2004 deducting payments of principal due on or before
such date (the "Initial Pool Balance"):
First Distribution Date: April 16, 2004 $1,234,613,151
Master Servicer: Midland Loan Services, Inc. Trustee: Xxxxx Fargo Bank, N.A.
Special Servicer: Midland Loan Services, Inc.
Certificate No. [X-CL] [X-CP]-___ CUSIP No.: ____________
A-2-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, MIDLAND LOAN SERVICES, INC., XXXXX FARGO BANK,
N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE
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A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT ENTITLE THE HOLDER HEREOF TO ANY
DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF WILL BE ENTITLED TO DISTRIBUTIONS
OF INTEREST ACCRUED AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE, WHICH AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
[FOR A REGULATION S GLOBAL CERTIFICATE: PRIOR TO THE DATE (THE "RELEASE DATE")
THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THIS
CERTIFICATE TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S UNDER
THE SECURITIES ACT, AND (B) THE DATE OF CLOSING OF THE OFFERING, THIS
CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE
SHALL BE ENTITLED TO RECEIVE PAYMENTS HEREON UNLESS THE REQUIRED CERTIFICATIONS
HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.]
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Closing Date by the aggregate notional principal amount of
all the Certificates of the same Class as this Certificate (their "Class
Notional Amount") as of the Closing Date) in that certain beneficial ownership
interest in the Trust evidenced by all the Certificates of the same Class as
this Certificate. The Trust was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), between Structured Asset Securities Corporation II, as depositor
(the "Depositor", which term includes any successor entity under the Agreement),
Midland Loan Services, Inc., as master servicer (the "Master Servicer", which
term includes any successor entity under the Agreement), Midland Loan Services,
Inc., as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement) and Xxxxx Fargo Bank, N.A., as trustee
(the "Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. In the event of any conflict
between any provision of this Certificate and any provision of the Agreement,
such provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable
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Distribution Date in respect of the Class of Certificates to which this
Certificate belongs; provided that the initial Record Date will be the Closing
Date. All distributions made under the Agreement in respect of this Certificate
will be made by the Trustee by wire transfer in immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five (5) Business Days
prior to (or, in the case of the first such distribution, no later than) the
Record Date for such distribution (which wiring instructions may be in the form
of a standing order applicable to all subsequent distributions as well), or
otherwise by check mailed to the address of such Certificateholder appearing in
the Certificate Register. Notwithstanding the above, the final distribution in
respect of this Certificate will be made after due notice by the Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar appointed as provided in
the Agreement or such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates or a
Transfer of this Certificate by the Depositor, Xxxxxx Brothers Inc. or any of
their respective Affiliates or, if this Certificate is a Global Certificate, a
Transfer of this Certificate to a successor Depository or to the applicable
Certificate Owner in accordance with Section 5.03 of the Agreement), then the
Certificate Registrar shall refuse to register such Transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to
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effect such Transfer substantially in the form attached as Exhibit F-1 to the
Agreement and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit F-2A to the Agreement or as
Exhibit F-2B to the Agreement; or (ii) an Opinion of Counsel satisfactory to the
Trustee to the effect that such Transferee is an Institutional Accredited
Investor or a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such Transfer from the Certificateholder desiring to
effect such Transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based. If any Transferee of this Certificate
does not, in connection with the subject Transfer, deliver to the Certificate
Registrar one of the certifications described in clause (i) of the preceding
sentence or the Opinion of Counsel described in clause (ii) of the preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that all the certifications set forth in either Exhibit F-2A or Exhibit F-2B
attached to the Agreement are, with respect to the subject Transfer, true and
correct.
If this Certificate constitutes a Rule 144A Global Certificate and a
Transfer of any interest herein is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a Transfer of any interest herein by the Depositor, Xxxxxx
Brothers Inc. or any of their respective Affiliates), then the Certificate Owner
desiring to effect such Transfer shall be required to obtain either (i) a
certificate from such Certificate Owner's prospective Transferee substantially
in the form attached as Exhibit F-2C to the Agreement, or (ii) an Opinion of
Counsel to the effect that such Transferee is a Qualified Institutional Buyer
and such Transfer may be made without registration under the Securities Act.
Except as discussed below, an interest in a Rule 144A Global Certificate for any
Class of Book-Entry Non-Registered Certificates may not be transferred to any
Person who takes delivery other than in the form of an interest in such Rule
144A Global Certificate. If this Certificate constitutes a Rule 144A Global
Certificate and any Transferee of an interest herein does not, in connection
with the subject Transfer, deliver to the Transferor the Opinion of Counsel or
the certification described in the second preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in Exhibit F-2C attached to the Agreement are, with
respect to the subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in a Rule 144A
Global Certificate for a Class of Book-Entry Non-Registered Certificates may be
transferred (without delivery of any certificate or Opinion of Counsel described
in clauses (i) and (ii) of the first sentence of the preceding paragraph) by the
Depositor or any Affiliate of the Depositor to any Person who takes delivery in
the form of a beneficial interest in the Regulation S Global Certificate for
such Class of Certificates upon delivery to the Certificate Registrar of (x) a
certificate to the effect that the Certificate Owner desiring to effect such
Transfer is the Depositor or an Affiliate of the Depositor and (y) such written
orders and instructions as are required under the applicable procedures of the
Depository, Clearstream and Euroclear to direct the Trustee to debit the account
of a Depository Participant by a denomination of interests in such Rule 144A
Global Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, that is equal
to the denomination of beneficial interests in the subject Class of Certificates
to be transferred. Upon delivery to the Certificate Registrar of such
certification and such orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the Rule 144A Global Certificate in respect of the subject Class
of Certificates and increase the denomination of the
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Regulation S Global Certificate for such Class, by the denomination of the
beneficial interest in such Class specified in such orders and instructions.
Also notwithstanding the second preceding paragraph, any interest in a
Rule 144A Global Certificate with respect to any Class of Book-Entry
Non-Registered Certificates may be transferred by any Certificate Owner holding
such interest to any Institutional Accredited Investor (other than a Qualified
Institutional Buyer) that takes delivery in the form of a Definitive Certificate
of the same Class as such Rule 144A Global Certificate upon delivery to the
Certificate Registrar and the Trustee of (i) such certifications and/or opinions
as are contemplated by the third preceding paragraph, (ii) a certification from
such Certificate Owner to the effect that it is the lawful owner of the
beneficial interest being transferred and (iii) such written orders and
instructions as are required under the applicable procedures of the Depository
to direct the Trustee to debit the account of a Depository Participant by the
denomination of the transferred interests in such Rule 144A Global Certificate.
Upon delivery to the Certificate Registrar of such certifications and/or
opinions and such orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the subject Rule 144A Global Certificate by the denomination of
the transferred interests in such Rule 144A Global Certificate, and shall cause
a Definitive Certificate of the same Class as such Rule 144A Global Certificate,
and in a denomination equal to the reduction in the denomination of such Rule
144A Global Certificate, to be executed, authenticated and delivered in
accordance with the Agreement to the applicable Transferee.
Except as provided in the next paragraph no beneficial interest in a
Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the Release Date, the Certificate Owner desiring to effect any such
Transfer shall be required to obtain from such Certificate Owner's prospective
Transferee a written certification substantially in the form set forth in
Exhibit F-2D to the Agreement certifying that such Transferee is not a United
States Securities Person. On or prior to the Release Date, beneficial interests
in the Regulation S Global Certificate for each Class of Book-Entry
Non-Registered Certificates may be held only through Euroclear or Clearstream.
Notwithstanding the preceding paragraph, any interest in a Regulation
S Global Certificate for a Class of Book-Entry Non-Registered Certificates may
be transferred by the Depositor or any Affiliate of the Depositor to any Person
who takes delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates upon delivery to the Certificate
Registrar of (x) a certificate to the effect that the Certificate Owner desiring
to effect such Transfer is the Depositor or an Affiliate of the Depositor and
(y) such written orders and instructions as are required under the applicable
procedures of the Depository, Clearstream and Euroclear to direct the Trustee to
debit the account of a Depository Participant by a denomination of interests in
such Regulation S Global Certificate, and credit the account of a Depository
Participant by a denomination of interests in such Rule 144A Global Certificate,
that is equal to the denomination of beneficial interests in the subject Class
of Certificates to be transferred. Upon delivery to the Certificate Registrar of
such certification and such orders and instructions, the Trustee, subject to and
in accordance with the applicable procedures of the Depository, shall reduce the
denomination of the Regulation S Global Certificate in respect of the subject
Class of Certificates and increase the denomination of the Rule 144A Global
Certificate for such Class, by the denomination of the beneficial interest in
such Class specified in such orders and instructions.
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None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Xxxxxx Brothers Inc., UBS Securities LLC, the
Trustee, the Master Servicer, the Special Servicer, the Certificate Registrar
and their respective Affiliates against any liability that may result if such
Transfer is not exempt from the registration and/or qualification requirements
of the Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate or any interest herein by the
Depositor, Xxxxxx Brothers Inc. or any of their respective Affiliates or, if
this Certificate constitutes a Global Certificate, any Transfer of this
Certificate to a successor Depository or to the applicable Certificate Owner in
accordance with Section 5.03 of the Agreement, the Certificate Registrar shall
refuse to register the Transfer of this Certificate unless it has received from
the prospective Transferee, and, if this Certificate constitutes a Global
Certificate, any Certificate Owner transferring an interest herein shall be
required to obtain from its prospective Transferee, one of the following: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate or such interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) a certification to the effect that the purchase and holding of
this Certificate or such interest herein by such prospective Transferee is
exempt from the prohibited transaction provisions of Sections 406(a) and (b) and
407 of ERISA and the excise taxes imposed on such prohibited transactions by
Sections 4975(a) and (b) of the Code, by reason of Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) if this Certificate is
rated in one of the four highest generic rating categories by either Rating
Agency, and this Certificate or an interest herein is being acquired by or on
behalf of a Plan in reliance on any of Prohibited Transaction Exemption 91-14, a
certification to the effect that such Plan (X) is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)((B) of ERISA) by the Trustee, the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
any Sub-Servicer, any Exemption-Favored Party or any Mortgagor with respect to
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of all the Mortgage Loans determined as of the Closing Date, or by any
Affiliate of such Person, and (Z) agrees that it will obtain from each of its
Transferees that are Plans a written representation that such Transferee, if a
Plan, satisfies the requirements of the immediately preceding clauses (X) and
(Y), together with a written agreement that such Transferee will obtain from
each of its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(X) and (Y); or (iv) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Trustee or such
Certificate Owner, as the
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case may be, that such Transfer will not result in a violation of Section 406 or
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. If any Transferee of this Certificate
or any interest herein does not, in connection with the subject Transfer,
deliver to the Certificate Registrar (if this Certificate constitutes a
Definitive Certificate) or the Transferor (if this Certificate constitutes a
Global Certificate) a certification and/or Opinion of Counsel as required by the
preceding sentence, then such Transferee shall be deemed to have represented and
warranted that either: (i) such Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate or any interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) the
purchase and holding of this Certificate or such interest herein by such
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[FOR BOOK ENTRY CERTIFICATES:] Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement
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of all Mortgage Loans and any REO Properties remaining in the Trust. The
Agreement permits, but does not require, the Depositor, Xxxxxx Brothers Inc.,
the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder to purchase from the Trust all Mortgage Loans and any REO
Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than approximately 1.0% of the aggregate Certificate
Principal Balance of all the Principal Balance Certificates as of the Closing
Date. In addition, following the date on which the total principal balance of
the Class X-0, X-0, X-0, A-4, B, C, D, E, F and G Certificates is reduced to
zero, any single Holder or group of Holders of all of the remaining Certificates
may, with the consent of the Master Servicer and subject to such other
conditions as may be set forth in the Agreement, exchange those Certificates for
all Mortgage Loans and REO Properties remaining in the Trust Fund at the time of
the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of any REMIC Pool as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
XXXXX FARGO BANK, N.A.,
as Trustee
By:
---------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [X-CL] [X-CP] Certificates referred to in the
within-mentioned Agreement.
Dated:
-----------
XXXXX FARGO BANK, N.A.,
as Certificate Registrar
By:
---------------------------
Authorized Officer
A-2-10
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________
______________________________________________________________________
______________________________________________________________________
(please print or typewrite name and address including postal zip code
of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address: ___________________
______________________________________________________________________
______________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________
________________________________ for the account of __________________
______________________________________.
Distributions made by check (such check to be made payable to_________
________________________)and all applicable statements and notices
should be mailed to __________________________________________________
_____________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS [B] [C] [D] [E] [F] CERTIFICATES
LB-UBS COMMERCIAL MORTGAGE TRUST 2004-C2
CLASS [B] [C] [D] [E] [F] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2004-C2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Pass-Through Rate: [___% per annum] [Variable] Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
$_______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [B] [C]
March 11, 2004 [D] [E] [F] Certificates as of the Closing Date:
$_______________
Cut-off Date: March 11, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
Closing Date: April 7, 2004 deducting payments of principal due on or before
such date (the "Initial Pool Balance"):
First Distribution Date: April 16, 2004 $1,234,613,151
Master Servicer: Midland Loan Services, Inc. Trustee: Xxxxx Fargo Bank, N.A.
Special Servicer: Midland Loan Services, Inc.
Certificate No. [B] [C] [D] [E] [F]-___ CUSIP No.:_______________
A-3-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, IF THE PURCHASE OR HOLDING OF THIS CERTIFICATE OR SUCH INTEREST
HEREIN WOULD RESULT IN A VIOLATION OF SECTION 406 OR 407 OF ERISA OR SECTION
4975 OF THE CODE OR WOULD RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER
SECTION 4975 OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, MIDLAND LOAN SERVICES, INC., XXXXX FARGO BANK,
N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its
A-3-2
"Certificate Principal Balance") as of the Closing Date by the aggregate
principal balance of all the Certificates of the same Class as this Certificate
(their "Class Principal Balance") as of the Closing Date) in that certain
beneficial ownership interest in the Trust evidenced by all the Certificates of
the same Class as this Certificate. The Trust was created and the Certificates
were issued pursuant to a Pooling and Servicing Agreement, dated as specified
above (the "Agreement"), between Structured Asset Securities Corporation II, as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Midland Loan Services, Inc., as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement),
Midland Loan Services, Inc., as special servicer (the "Special Servicer", which
term includes any successor entity under the Agreement) and Xxxxx Fargo Bank,
N.A., as trustee (the "Trustee", which term includes any successor entity under
the Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs; provided that the initial Record Date will be
the Closing Date. All distributions made under the Agreement in respect of this
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions no less than five (5)
Business Days prior to (or, in the case of the first such distribution, no later
than) the Record Date for such distribution (which wiring instructions may be in
the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate) will be made after due notice
by the Trustee of the pendency of such distribution and only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice. Also notwithstanding the foregoing, any distribution
that may be made with respect to this Certificate in reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
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Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[FOR BOOK ENTRY CERTIFICATES:] Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
A-3-4
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust. The Agreement permits, but does not require, the Depositor, Xxxxxx
Brothers Inc., the Master Servicer, the Special Servicer or any Controlling
Class Certificateholder to purchase from the Trust all Mortgage Loans and any
REO Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than approximately 1.0% of the aggregate Certificate
Principal Balance of all the Principal Balance Certificates as of the Closing
Date. In addition, following the date on which the total principal balance of
the Class X-0, X-0, X-0, A-4, B, C, D, E, F and G Certificates is reduced to
zero, any single Holder or group of Holders of all of the remaining Certificates
may, with the consent of the Master Servicer and subject to such other
conditions as may be set forth in the Agreement, exchange those Certificates for
all Mortgage Loans and REO Properties remaining in the Trust Fund at the time of
the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of any REMIC Pool as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any
A-3-5
conflicts of law principles of such state (other than the provisions of Section
5-1401 of the New York General Obligations Law), and the obligations, rights and
remedies of the Holder hereof shall be determined in accordance with such laws.
A-3-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
XXXXX FARGO BANK, N.A.,
as Trustee
By:
-----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B] [C] [D] [E] [F] Certificates referred to
in the within-mentioned Agreement.
Dated:
-----------------
XXXXX FARGO BANK, N.A.,
as Certificate Registrar
By:
-----------------------------------
Authorized Officer
A-3-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________
______________________________________________________________________
______________________________________________________________________
(please print or typewrite name and address including postal zip code
of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:____________________
______________________________________________________________________
______________________________________________________________________
Dated:
---------------------------------------
Signature by or on behalf of Assignor
---------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________
__________________________________ for the account of ________________
_____________________________________________________________________.
Distributions made by check (such check to be made payable to ________
______________________________________) and all applicable statements
and notices should be mailed to ______________________________________
_____________________________________________________________________.
This information is provided by _________________________________, the
assignee named above, or _______________________________________, as
its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T] CERTIFICATES
LB-UBS COMMERCIAL MORTGAGE TRUST 2004-C2
CLASS [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2004-C2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Pass-Through Rate: [Variable] Initial Certificate Principal Balance of this
Certificate as of the Closing Date:
$_______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class [G] [H]
March 11, 2004 [J] [K] [L] [M] [N] [P] [Q] [S] [T] Certificates as
of the Closing Date:
$_______________
Cut-off Date: March 11, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
Closing Date: April 7, 2004 deducting payments of principal due on or before
such date (the "Initial Pool Balance"):
First Distribution Date: April 16, 2004 $1,234,613,151
Master Servicer: Midland Loan Services, Inc. Trustee: Xxxxx Fargo Bank, N.A.
Special Servicer: Midland Loan Services, Inc.
Certificate No. [G] [H] [J] [K] [L] [M] [N]
[P] [Q] [S] [T]-___ CUSIP No.:____________________
A-4-1
[FOR BOOK ENTRY CERTIFICATES:] UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, MIDLAND LOAN SERVICES, INC., XXXXX FARGO BANK,
N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A
A-4-2
"REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
[FOR A REGULATION S GLOBAL CERTIFICATE: PRIOR TO THE DATE (THE "RELEASE DATE")
THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THIS
CERTIFICATE TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S UNDER
THE SECURITIES ACT, AND (B) THE DATE OF CLOSING OF THE OFFERING, THIS
CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE
SHALL BE ENTITLED TO RECEIVE PAYMENTS HEREON UNLESS THE REQUIRED CERTIFICATIONS
HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.]
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), between
Structured Asset Securities Corporation II, as depositor (the "Depositor", which
term includes any successor entity under the Agreement), Midland Loan Services,
Inc., as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Midland Loan Services, Inc., as special
servicer (the "Special Servicer", which term includes any successor entity under
the Agreement) and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event of any conflict between any provision of this
Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs; provided that
A-4-3
the initial Record Date will be the Closing Date. All distributions made under
the Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to (or, in the case of
the first such distribution, no later than) the Record Date for such
distribution (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
A-4-4
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with the initial issuance of the Certificates or a
Transfer of this Certificate by the Depositor, Xxxxxx Brothers Inc. or any of
their respective Affiliates or, if this Certificate is a Global Certificate, a
Transfer of this Certificate to a successor Depository or to the applicable
Certificate Owner in accordance with Section 5.03 of the Agreement), then the
Certificate Registrar shall refuse to register such Transfer unless it receives
(and, upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such Transfer substantially in the form
attached as Exhibit F-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A to the Agreement or as Exhibit F-2B to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Trustee to the effect that such
Transferee is an Institutional Accredited Investor or a Qualified Institutional
Buyer and such Transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are, with
respect to the subject Transfer, true and correct.
If this Certificate constitutes a Rule 144A Global Certificate and a
Transfer of any interest herein is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a Transfer of any interest herein by the Depositor, Xxxxxx
Brothers Inc. or any of their respective Affiliates), then the Certificate Owner
desiring to effect such Transfer shall be required to obtain either (i) a
certificate from such Certificate Owner's prospective Transferee substantially
in the form attached as Exhibit F-2C to the Agreement, or (ii) an Opinion of
Counsel to the effect that such Transferee is a Qualified Institutional Buyer
and such Transfer may be made without registration under the Securities Act.
Except as discussed below, an interest in a Rule 144A Global Certificate for any
Class of Book-Entry Non-Registered Certificates may not be transferred to any
Person who takes delivery other than in the form of an interest in such Rule
144A Global Certificate. If this Certificate constitutes a Rule 144A Global
Certificate and any Transferee of an interest herein does not, in connection
with the subject Transfer, deliver to the Transferor the Opinion of Counsel or
the certification described in the second preceding sentence, then such
Transferee shall be deemed to have represented and warranted that all the
certifications set forth in Exhibit F-2C attached to the Agreement are, with
respect to the subject Transfer, true and correct.
[FOR CLASS T CERTIFICATES ONLY: If this Certificate constitutes a Rule
144A Global Certificate and a Transfer of any interest herein is to be made
without registration under the Securities Act, any Certificate Owner desiring to
effect a transfer of this Certificate or any interest
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herein may not sell or otherwise transfer this Certificate or any interest
herein unless it has provided the Depositor with prior written notice of such
transfer (together with a copy of the certificate (executed by the proposed
transferee) or Opinion of Counsel referred to in the preceding paragraph); such
notice to be delivered to Structured Asset Securities Corporation II, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxx--LB-UBS
Commercial Mortgage Trust 2004-C2, facsimile number: (000) 000-0000.]
Notwithstanding the preceding paragraph, any interest in a Rule 144A
Global Certificate for a Class of Book-Entry Non-Registered Certificates may be
transferred (without delivery of any certificate or Opinion of Counsel described
in clauses (i) and (ii) of the first sentence of the preceding paragraph) by the
Depositor or any Affiliate of the Depositor to any Person who takes delivery in
the form of a beneficial interest in the Regulation S Global Certificate for
such Class of Certificates upon delivery to the Certificate Registrar of (x) a
certificate to the effect that the Certificate Owner desiring to effect such
Transfer is the Depositor or an Affiliate of the Depositor and (y) such written
orders and instructions as are required under the applicable procedures of the
Depository, Clearstream and Euroclear to direct the Trustee to debit the account
of a Depository Participant by a denomination of interests in such Rule 144A
Global Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, that is equal
to the denomination of beneficial interests in the subject Class of Certificates
to be transferred. Upon delivery to the Certificate Registrar of such
certification and such orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the Rule 144A Global Certificate in respect of the subject Class
of Certificates and increase the denomination of the Regulation S Global
Certificate for such Class, by the denomination of the beneficial interest in
such Class specified in such orders and instructions.
Also notwithstanding the second preceding paragraph, any interest in a
Rule 144A Global Certificate with respect to any Class of Book-Entry
Non-Registered Certificates may be transferred by any Certificate Owner holding
such interest to any Institutional Accredited Investor (other than a Qualified
Institutional Buyer) that takes delivery in the form of a Definitive Certificate
of the same Class as such Rule 144A Global Certificate upon delivery to the
Certificate Registrar and the Trustee of (i) such certifications and/or opinions
as are contemplated by the third preceding paragraph, (ii) a certification from
such Certificate Owner to the effect that it is the lawful owner of the
beneficial interest being transferred and (iii) such written orders and
instructions as are required under the applicable procedures of the Depository
to direct the Trustee to debit the account of a Depository Participant by the
denomination of the transferred interests in such Rule 144A Global Certificate.
Upon delivery to the Certificate Registrar of such certifications and/or
opinions and such orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the subject Rule 144A Global Certificate by the denomination of
the transferred interests in such Rule 144A Global Certificate, and shall cause
a Definitive Certificate of the same Class as such Rule 144A Global Certificate,
and in a denomination equal to the reduction in the denomination of such Rule
144A Global Certificate, to be executed, authenticated and delivered in
accordance with the Agreement to the applicable Transferee.
Except as provided in the next paragraph no beneficial interest in a
Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the Release Date, the Certificate Owner desiring to effect any such
Transfer shall be
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required to obtain from such Certificate Owner's prospective Transferee a
written certification substantially in the form set forth in Exhibit F-2D to the
Agreement certifying that such Transferee is not a United States Securities
Person. On or prior to the Release Date, beneficial interests in the Regulation
S Global Certificate for each Class of Book-Entry Non-Registered Certificates
may be held only through Euroclear or Clearstream.
Notwithstanding the preceding paragraph, any interest in a Regulation
S Global Certificate for a Class of Book-Entry Non-Registered Certificates may
be transferred by the Depositor or any Affiliate of the Depositor to any Person
who takes delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for such Class of Certificates upon delivery to the Certificate
Registrar of (x) a certificate to the effect that the Certificate Owner desiring
to effect such Transfer is the Depositor or an Affiliate of the Depositor and
(y) such written orders and instructions as are required under the applicable
procedures of the Depository, Clearstream and Euroclear to direct the Trustee to
debit the account of a Depository Participant by a denomination of interests in
such Regulation S Global Certificate, and credit the account of a Depository
Participant by a denomination of interests in such Rule 144A Global Certificate,
that is equal to the denomination of beneficial interests in the subject Class
of Certificates to be transferred. Upon delivery to the Certificate Registrar of
such certification and such orders and instructions, the Trustee, subject to and
in accordance with the applicable procedures of the Depository, shall reduce the
denomination of the Regulation S Global Certificate in respect of the subject
Class of Certificates and increase the denomination of the Rule 144A Global
Certificate for such Class, by the denomination of the beneficial interest in
such Class specified in such orders and instructions.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Xxxxxx Brothers Inc., UBS Securities LLC, the
Trustee, the Master Servicer, the Special Servicer, the Certificate Registrar
and their respective Affiliates against any liability that may result if such
Transfer is not exempt from the registration and/or qualification requirements
of the Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate or any interest herein by the
Depositor, Xxxxxx Brothers Inc. or any of their respective Affiliates or, if
this Certificate constitutes a Global Certificate, any Transfer of this
Certificate to a successor Depository or to the applicable Certificate Owner in
accordance with Section 5.03 of the Agreement, the Certificate Registrar shall
refuse to
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register the Transfer of this Certificate unless it has received from the
prospective Transferee, and, if this Certificate constitutes a Global
Certificate, any Certificate Owner transferring an interest herein shall be
required to obtain from its prospective Transferee, one of the following: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate or such interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) a certification to the effect that the purchase and holding of
this Certificate or such interest herein by such prospective Transferee is
exempt from the prohibited transaction provisions of Sections 406(a) and (b) and
407 of ERISA and the excise taxes imposed on such prohibited transactions by
Sections 4975(a) and (b) of the Code, by reason of Sections I and III of
Prohibited Transaction Class Exemption 95-60; or (iii) if this Certificate is
rated in one of the four highest generic rating categories by either Rating
Agency, and this Certificate or an interest herein is being acquired by or on
behalf of a Plan in reliance on any of Prohibited Transaction Exemption 91-14, a
certification to the effect that such Plan (X) is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special Servicer,
any Sub-Servicer, any Exemption-Favored Party or any Mortgagor with respect to
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of all the Mortgage Loans determined as of the Closing Date, or by any
Affiliate of such Person, and (Z) agrees that it will obtain from each of its
Transferees that are Plans a written representation that such Transferee, if a
Plan, satisfies the requirements of the immediately preceding clauses (X) and
(Y), together with a written agreement that such Transferee will obtain from
each of its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(X) and (Y); or (iv) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Trustee or such
Certificate Owner, as the case may be, that such Transfer will not result in a
violation of Section 406 or 407 of ERISA or Section 4975 of the Code or result
in the imposition of an excise tax under Section 4975 of the Code. If any
Transferee of this Certificate or any interest herein does not, in connection
with the subject Transfer, deliver to the Certificate Registrar (if this
Certificate constitutes a Definitive Certificate) or the Transferor (if this
Certificate constitutes a Global Certificate) a certification and/or Opinion of
Counsel as required by the preceding sentence, then such Transferee shall be
deemed to have represented and warranted that either (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or any
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Sections 406(a) and (b) and 407 of ERISA and the excise taxes
imposed on such prohibited transactions by Sections 4975(a) and (b) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
[FOR BOOK ENTRY CERTIFICATES:] Notwithstanding the foregoing, for so
long as this Certificate is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide
A-4-8
any such information obtained by it to any other Person that holds or is
contemplating the purchase of this Certificate or an interest herein, provided
that such other Person confirms in writing such ownership interest or
prospective ownership interest and agrees to keep such information
confidential). Notwithstanding the foregoing, each offeree and/or holder of this
Certificate (and each employee, representative, or other agent of such offeree
or holder) may disclose to any and all persons, without limitation of any kind,
the tax treatment and tax structure of the transactions (as defined in section
1.6011-4 of the Treasury Department regulations) associated herewith and all
materials of any kind (including opinions or other tax analyses) that are
provided to the taxpayer relating to such tax treatment and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust. The Agreement permits, but does not require, the Depositor, Xxxxxx
Brothers Inc., the Master Servicer, the Special Servicer or any Controlling
Class Certificateholder to purchase from the Trust all Mortgage Loans and any
REO Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than approximately 1.0% of the aggregate Certificate
Principal Balance of all the Principal Balance Certificates as of the Closing
Date. In addition, following the date on which the total principal balance of
the Class X-0, X-0, X-0, A-4, B, C, D, E, F and G Certificates is reduced to
zero, any single Holder or group of Holders of all of the remaining Certificates
may, with the consent of the Master Servicer and subject to such other
conditions as may be set forth in the Agreement, exchange those Certificates for
all Mortgage Loans and REO Properties remaining in the Trust Fund at the time of
the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of any REMIC Pool as a REMIC, without the consent of the
Holders of any of the Certificates.
A-4-9
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-4-10
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
XXXXX FARGO BANK, N.A.,
as Trustee
By:
-----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T]
Certificates referred to in the within-mentioned Agreement.
Dated:
-----------------
XXXXX FARGO BANK, N.A.,
as Certificate Registrar
By:
-----------------------------------
Authorized Officer
A-4-11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________
______________________________________________________________________
______________________________________________________________________
(please print or typewrite name and address including postal zip code
of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address:____________________
______________________________________________________________________
______________________________________________________________________
Dated:
---------------------------------------
Signature by or on behalf of Assignor
---------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________
______________________________________________________________________
for the account of __________________________________________________.
Distributions made by check (such check to be made payable to
_________________________________________________________________)
and all applicable statements and notices should be mailed to ________
_____________________________________________________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its
agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS [R-I] [R-II] [R-III] CERTIFICATES
LB-UBS COMMERCIAL MORTGAGE TRUST 2004-C2
CLASS [R-I] [R-II] [R-III] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2004-C2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate in the
March 11, 2004 related Class: ___%
Cut-off Date: March 11, 0000 Xxxxxxxxx unpaid principal balance of the Mortgage Pool as
of the Cut-off Date, after deducting payments of principal
Closing Date: April 7, 2004 due on or before such date (the "Initial Pool Balance"):
$1,234,613,151
First Distribution Date: April 16, 2004
Master Servicer: Midland Loan Services, Inc. Trustee: Xxxxx Fargo Bank, N.A.
Special Servicer: Midland Loan Services, Inc.
Certificate No. [R-I] [R-II] [R-III]-___
A-5-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, MIDLAND LOAN SERVICES, INC., XXXXX FARGO BANK,
N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that _______________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate (as specified
above) in that certain beneficial ownership
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interest in the Trust evidenced by all the Certificates of the same Class as
this Certificate. The Trust was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), between Structured Asset Securities Corporation II, as depositor
(the "Depositor", which term includes any successor entity under the Agreement),
Midland Loan Services, Inc., as master servicer (the "Master Servicer", which
term includes any successor entity under the Agreement), Midland Loan Services,
Inc., as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement) and Xxxxx Fargo Bank, N.A., as trustee
(the "Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound. In the event of any conflict
between any provision of this Certificate and any provision of the Agreement,
such provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs; provided that the initial Record Date will be
the Closing Date. All distributions made under the Agreement in respect of this
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions no less than five (5)
Business Days prior to (or, in the case of the first such distribution, no later
than) the Record Date for such distribution (which wiring instructions may be in
the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in
A-5-3
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without registration
under the Securities Act (other than in connection with the initial issuance of
the Certificates or a Transfer of this Certificate by the Depositor, Xxxxxx
Brothers Inc. or any of their respective Affiliates), then the Certificate
Registrar shall refuse to register such Transfer unless it receives (and, upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such Transfer substantially in the form
attached as Exhibit F-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A to the Agreement or as Exhibit F-2B to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Trustee to the effect that such
Transferee is an Institutional Accredited Investor or a Qualified Institutional
Buyer and such Transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are, with
respect to the subject Transfer, true and correct.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder desiring to effect a Transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, Xxxxxx Brothers Inc., UBS Securities LLC, the Trustee, the Master
Servicer, the Special Servicer, the Certificate Registrar and their respective
Affiliates against any liability that may result if such Transfer is not exempt
from the registration and/or qualification requirements of the Securities Act
and any applicable state securities laws or is not made in accordance with such
federal and state laws.
A-5-4
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate by the Depositor, Xxxxxx
Brothers Inc. or any of their respective Affiliates, the Certificate Registrar
shall refuse to register the Transfer of this Certificate unless it has received
from the prospective Transferee, one of the following: (i) a certification to
the effect that such prospective Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or (ii) a certification of facts and an
Opinion of Counsel which otherwise establish to the reasonable satisfaction of
the Trustee that such Transfer will not result in a violation of Section 406 or
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. If any Transferee of this Certificate
or any interest herein does not, in connection with the subject Transfer,
deliver to the Certificate Registrar a certification and/or Opinion of Counsel
as required by the preceding sentence, then such Transferee shall be deemed to
have represented and warranted that either (i) such Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate or such interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) the purchase and holding of this Certificate or such interest
herein by such Transferee is exempt from the prohibited transaction provisions
of Sections 406(a) and (b) and 407 of ERISA and the excise taxes imposed on such
prohibited transactions by Sections 4975(a) and (b) of the Code.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Trustee
and the Tax Administrator of any change or impending change in its status as a
Permitted Transferee. In connection with any proposed Transfer of any Ownership
Interest in this Certificate, the Certificate Registrar shall require delivery
to it, and shall not register the transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit H-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its Ownership
Interest in this Certificate as a nominee, trustee or agent for any Person that
is not a Permitted Transferee, that for so long as it retains its Ownership
Interest in this Certificate, it will endeavor to remain a Permitted Transferee,
and that it has reviewed the provisions of Section 5.02(d) of the Agreement and
agrees to be bound by them. Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee, if the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted Transferee, the
Certificate Registrar shall not register the
A-5-5
Transfer of an Ownership Interest in this Certificate to such proposed
Transferee. In addition, the Certificate Registrar shall not register the
transfer of an Ownership Interest in this Certificate to any entity classified
as a partnership under the Code unless at the time of transfer, all of its
beneficial owners are United States Tax Persons.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to Transfer its Ownership Interest
herein and (y) not to Transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee and the Tax
Administrator written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury regulations section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Trustee and the Tax Administrator the following: (a) written notification from
each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating Agency to withdraw,
qualify or downgrade its then-current rating of any Class of Certificates; and
(b) an opinion of counsel, in form and substance satisfactory to the Trustee and
the Tax Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not (i) cause any REMIC Pool to (A) cease to
qualify as a REMIC or (B) be subject to an entity-level tax caused by the
Transfer of a Residual Interest Certificate to a Person which is not a Permitted
Transferee, or (ii) cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Residual Interest
Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not (i) a
Disqualified Organization, (ii) any Person as to whom the transfer of this
Certificate may cause any REMIC Pool to fail to qualify as a REMIC, (iii) a
Disqualified Non-United States Tax Person, (iv) a Disqualified Partnership or
(v) a foreign permanent establishment or fixed base (within the meaning of any
applicable income tax treaty between the United States and any foreign
jurisdiction) of a United States Tax Person..
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, a foreign government, an international
organization, or any agency or instrumentality of any of the foregoing, (ii) any
organization (other than certain farmers' cooperatives described in Section 521
of the Code) that is exempt from the tax imposed by Chapter 1 of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iii) rural electric and telephone cooperatives described in
Section 1381 of the Code and (iv) any other Person so designated by the Trustee
or the Tax Administrator based upon an opinion of counsel that the holding of an
Ownership Interest in a Residual Interest Certificate by such Person may cause
the Trust 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 Interest Certificate to such Person. The
terms "United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
A-5-6
A "Disqualified Non-United States Tax Person" is, with respect to any
Residual Interest Certificate, any Non-United States Tax Person or agent thereof
other than: (1) a Non-United States Tax Person that (a) holds such Residual
Interest Certificate and, for purposes of Treasury regulations section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies
that it understands that, for purposes of Treasury regulations section
1.860E-1(c)(4)(ii), as a holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in excess of
any cash flows generated by such Residual Interest Certificate and intends to
pay taxes associated with holding such Residual Interest Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS Form W-8ECI
or successor form and has agreed to update such form as required under the
applicable Treasury regulations; or (2) a Non-United States Tax Person that has
delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
A "Disqualified Partnership" is any domestic entity classified as a
partnership under the Code, if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
A "Non-United States Tax Person" is any Person other than a United
States Tax Person. A "United States Tax Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any political subdivision
thereof, or an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust (or to the extent provided in the Treasury regulations, if the trust was
in existence on August 20, 1996 and elected to be treated as a United States
person), all within the meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
A-5-7
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust. The Agreement permits, but does not require, the Depositor, Xxxxxx
Brothers Inc., the Master Servicer, the Special Servicer or any Controlling
Class Certificateholder to purchase from the Trust all Mortgage Loans and any
REO Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than approximately 1.0% of the aggregate Certificate
Principal Balance of all the Principal Balance Certificates as of the Closing
Date. In addition, following the date on which the total principal balance of
the Class X-0, X-0, X-0, A-4, B, C, D, E, F and G Certificates is reduced to
zero, any single Holder or group of Holders of all of the remaining Certificates
may, with the consent of the Master Servicer and subject to such other
conditions as may be set forth in the Agreement, exchange those Certificates for
all Mortgage Loans and REO Properties remaining in the Trust Fund at the time of
the exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of any REMIC Pool as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any
A-5-8
conflicts of law principles of such state (other than the provisions of Section
5-1401 of the New York General Obligations Law), and the obligations, rights and
remedies of the Holder hereof shall be determined in accordance with such laws.
A-5-9
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
XXXXX FARGO BANK, N.A.,
as Trustee
By:
------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] [R-III] Certificates referred to
in the within-mentioned Agreement.
Dated:
-----------
XXXXX FARGO BANK, N.A.,
as Certificate Registrar
By:
------------------------------
Authorized Officer
A-5-10
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________
______________________________________________________________________
______________________________________________________________________
(please print or typewrite name and address including postal zip code
of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address: ___________________
______________________________________________________________________
______________________________________________________________________
Dated:
---------------------------------------
Signature by or on behalf of Assignor
---------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________
__________________________________ for the account of ________________
_____________________________________________________________________.
Distributions made by check (such check to be made payable to ________
______________________________________) and all applicable statements
and notices should be mailed to ______________________________________
_____________________________________________________________________.
This information is provided by _________________________________, the
assignee named above, or _______________________________________, as
its agent.
X-0-00
XXXXXXX X-0
FORM OF CLASS V CERTIFICATES
LB-UBS COMMERCIAL MORTGAGE TRUST 2004-C2
CLASS V COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2004-C2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
STRUCTURED ASSET SECURITIES CORPORATION II
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate in
March 11, 2004 Class V: ___%
Cut-off Date: March 11, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date, after
Closing Date: April 7, 2004 deducting payments of principal due on or before
such date (the "Initial Pool Balance"):
First Distribution Date: April 16, 2004 $1,234,613,151
Master Servicer: Midland Loan Services, Inc. Trustee: Xxxxx Fargo Bank, N.A.
Special Servicer: Midland Loan Services, Inc.
Certificate No. V-___
A-6-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY
INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STRUCTURED
ASSET SECURITIES CORPORATION II, MIDLAND LOAN SERVICES, INC., XXXXX FARGO BANK,
N.A., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD TRUST MORTGAGE LOANS SUBJECT TO THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
This certifies that ________________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate (as specified
above) in that certain beneficial ownership interest in the Trust evidenced by
all the Class V Certificates. The Trust was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), between Structured Asset Securities Corporation II, as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), Midland Loan Services, Inc., as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement),
Midland Loan Services, Inc., as special servicer (the "Special Servicer", which
term includes any successor entity under the Agreement) and Xxxxx Fargo Bank,
N.A., as trustee (the "Trustee", which term includes any successor entity under
the Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. In the event of any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
A-6-2
Pursuant to the terms of the Agreement, distributions will be made on
the 4th Business Day following the 11th calendar day of each month (or, if such
11th calendar day is not a Business Day, then the 5th Business Day following
such 11th calendar day) (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs; provided that the initial Record Date will be
the Closing Date. All distributions made under the Agreement in respect of this
Certificate will be made by the Trustee by wire transfer in immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with written wiring instructions no less than five (5)
Business Days prior to (or, in the case of the first such distribution, no later
than) the Record Date for such distribution (which wiring instructions may be in
the form of a standing order applicable to all subsequent distributions as
well), or otherwise by check mailed to the address of such Certificateholder
appearing in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Collection Account and,
if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
A-6-3
If a Transfer of this Certificate is to be made without registration
under the Securities Act (other than in connection with the initial issuance of
the Certificates or a Transfer of this Certificate by the Depositor, Xxxxxx
Brothers Inc. or any of their respective Affiliates), then the Certificate
Registrar shall refuse to register such Transfer unless it receives (and, upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such Transfer substantially in the form
attached as Exhibit F-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A to the Agreement or as Exhibit F-2B to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Trustee to the effect that such
Transferee is an Institutional Accredited Investor or a Qualified Institutional
Buyer and such Transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. If any Transferee of this Certificate does not, in connection with the
subject Transfer, deliver to the Certificate Registrar one of the certifications
described in clause (i) of the preceding sentence or the Opinion of Counsel
described in clause (ii) of the preceding sentence, then such Transferee shall
be deemed to have represented and warranted that all the certifications set
forth in either Exhibit F-2A or Exhibit F-2B attached to the Agreement are, with
respect to the subject Transfer, true and correct.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder desiring to effect a Transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, Xxxxxx Brothers Inc., UBS Securities LLC, the Trustee, the Master
Servicer, the Special Servicer, the Certificate Registrar and their respective
Affiliates against any liability that may result if such Transfer is not exempt
from the registration and/or qualification requirements of the Securities Act
and any applicable state securities laws or is not made in accordance with such
federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to ERISA or the Code (each, a "Plan"), or (B) any Person who is directly
or indirectly purchasing this Certificate or such interest herein on behalf of,
as named fiduciary of, as trustee of, or with assets of a Plan, if the purchase
and holding of this Certificate or such interest herein by the prospective
Transferee would result in a violation of Section 406 or 407 of ERISA or Section
4975 of the Code or would result in the imposition of an excise tax under
Section 4975 of the Code. Except in connection with the initial issuance of the
Certificates or any Transfer of this Certificate by the Depositor, Xxxxxx
Brothers Inc. or any of their respective Affiliates, the Certificate Registrar
shall refuse to register the Transfer of this Certificate unless it has received
from the prospective Transferee, one of the following: (i) a certification to
the effect that such prospective Transferee is not a Plan and is not directly or
indirectly purchasing this Certificate or such interest herein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) a
certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Trustee that such Transfer will not result in
a violation of Section
A-6-4
406 or 407 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code. If any Transferee of this
Certificate or any interest herein does not, in connection with the subject
Transfer, deliver to the Certificate Registrar a certification and/or Opinion of
Counsel as required by the preceding sentence, then such Transferee shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Sections 406(a) and (b) and 407 of ERISA and the excise taxes
imposed on such prohibited transactions by Sections 4975(a) and (b) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential). Notwithstanding the foregoing, each offeree
and/or holder of this Certificate (and each employee, representative, or other
agent of such offeree or holder) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
(as defined in section 1.6011-4 of the Treasury Department regulations)
associated herewith and all materials of any kind (including opinions or other
tax analyses) that are provided to the taxpayer relating to such tax treatment
and tax structure.
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar and any agents of any of them may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, and (ii) the purchase by
the Depositor, Xxxxxx Brothers Inc., the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust. The Agreement permits, but does not require, the Depositor, Xxxxxx
Brothers Inc., the Master Servicer, the Special Servicer or any Controlling
Class Certificateholder to purchase from the Trust all Mortgage Loans and any
REO Properties remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than approximately 1.0% of the aggregate Certificate
Principal
A-6-5
Balance of all the Principal Balance Certificates as of the Closing Date. In
addition, following the date on which the total principal balance of the Class
X-0, X-0, X-0, A-4, B, C, D, E, F and G Certificates is reduced to zero, any
single Holder or group of Holders of all of the remaining Certificates may, with
the consent of the Master Servicer and subject to such other conditions as may
be set forth in the Agreement, exchange those Certificates for all Mortgage
Loans and REO Properties remaining in the Trust Fund at the time of the
exchange.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee thereunder
and the rights of the Certificateholders thereunder, at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66-2/3% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain circumstances, including any amendment necessary
to maintain the status of any REMIC Pool as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
A-6-6
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
XXXXX FARGO BANK, N.A.,
as Trustee
By:
------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the
within-mentioned Agreement.
Dated:
------------
XXXXX FARGO BANK, N.A.,
as Certificate Registrar
By:
------------------------------
Authorized Officer
A-6-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________
______________________________________________________________________
______________________________________________________________________
(please print or typewrite name and address including postal zip code
of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to
the above named assignee and delivery of such Commercial Mortgage
Pass-Through Certificate to the following address: ___________________
______________________________________________________________________
______________________________________________________________________
Dated:
---------------------------------------
Signature by or on behalf of Assignor
---------------------------------------
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ________________________
__________________________________ for the account of ________________
_____________________________________________________________________.
Distributions made by check (such check to be made payable to ________
______________________________________) and all applicable statements
and notices should be mailed to ______________________________________
_____________________________________________________________________.
This information is provided by _________________________________, the
assignee named above, or _______________________________________, as
its agent.
A-6-8
EXHIBIT B
FORM OF DISTRIBUTION DATE STATEMENT
[See Annex D to Prospectus Supplement]
B-1
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
To the parties listed on the attached Schedule A
Re: LB-UBS Commercial Mortgage Trust 2004-C2
Commercial Mortgage Pass Through Certificates, Series 2004-C2
(the "Certificates")
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
dated as of March 11, 2004, relating to the above-referenced Certificates (the
"Agreement"), Xxxxx Fargo Bank, N.A., in its capacity as trustee (the
"Trustee"), hereby certifies as to each Mortgage Loan subject as of the date
hereof to the Agreement (except as identified in the exception report attached
hereto) that: (i) all documents specified in clauses (a)(i) through (a)(v),
(a)(vii), (a)(viii) and (a)(ix) of the definition of "Mortgage File" (without
regard to the second parenthetical in such clause (a)(viii)) or, in the case of
the GIC Office Trust Mortgage Loan, in clauses (b)(i) through (b)(iii) of the
definition of "Mortgage File", are in its possession or the possession of a
Custodian on its behalf; (ii) the recordation/filing contemplated by Section
2.01(c) of the Agreement has been completed (based solely on receipt by the
Trustee of the particular recorded/filed documents); (iii) all documents
received by it or any Custodian with respect to such Mortgage Loan have been
reviewed by it or by such Custodian on its behalf and (A) appear regular on
their face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appear to have been executed
(where appropriate) and (C) purport to relate to such Mortgage Loan; and (iv)
based on the examinations referred to in Section 2.02(a) of the Agreement and in
this Certification and only as to the foregoing documents, the information set
forth in the Trust Mortgage Loan Schedule with respect to the items specified in
clauses (v) and (vi)(B) of the definition of "Trust Mortgage Loan Schedule"
accurately reflects the information set forth in the Mortgage File.
Neither the Trustee nor any Custodian is under any duty or obligation
to inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Mortgage Loans delivered to it to determine that
the same are valid, legal, effective, genuine, binding, enforceable, sufficient
or appropriate for the represented purpose or that they are other than what they
purport to be on their face. Furthermore, neither the Trustee nor any Custodian
shall have any responsibility for determining whether the text of any assignment
or endorsement is in proper or recordable form, whether the requisite recording
of any document is in accordance with the requirements of any applicable
jurisdiction, or whether a blanket assignment is permitted in any applicable
jurisdiction. In performing the review contemplated herein, the Trustee or any
Custodian may rely on the Depositor as to the purported genuineness of any such
document and any signature thereon.
C-1
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
Respectfully,
XXXXX FARGO BANK, N.A.,
as Trustee
By:
------------------------------------
Name:
Title:
C-2
Schedule A
Midland Loan Services, Inc.
00000 Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2004-C2
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2004-C2
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2004-C2
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2004-C2
LUBS Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2004-C2
UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2004-C2
UBS Real Estate Investments Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2004-C2
Each of the Serviced Non-Trust Mortgage Loan Noteholders
C-3
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Xxxxx Fargo Bank, N.A., as Trustee
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - LB-UBS Commercial Mortgage Trust 2004-C2
[For Xxxxxx Trust Mortgage Loans, with a copy to:
LaSalle Bank National Association, as Custodian
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--LB-UBS Commercial
Mortgage Trust 2004-C2]
Re: LB-UBS Commercial Mortgage Trust 2004-C2,
Commercial Mortgage Pass-Through Certificates, Series 2004-C2
In connection with the administration of the Mortgage Files held by
you as Trustee (or by a Custodian on your behalf), under that certain Pooling
and Servicing Agreement dated as of March 11, 2004 (the "Pooling and Servicing
Agreement"), by and between Structured Asset Securities Corporation II, as
depositor, Midland Loan Services, Inc., as master servicer (the "Master
Servicer") and as special servicer (the "Special Servicer") and Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee), the undersigned hereby requests a release
of the Mortgage File (or the portion thereof specified below) held by you as
Trustee or by a Custodian on your behalf, with respect to the following
described Mortgage Loan for the reason indicated below.
Property Name: _______________________________________________________
Address: _____________________________________________________________
Control 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 undersigned hereby certifies
that all amounts received in connection with the Mortgage
Loan that are required to be credited to the Custodial
Accounts pursuant to the Pooling and Servicing Agreement,
have been or will be so credited.
D-1-1
_____ 2. Other. (Describe) __________________________________________
____________________________________________________________
____________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
MIDLAND LOAN SERVICES, INC.
By:
------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
----------
Xxxxx Fargo Bank, N.A., as Trustee
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - LB-UBS Commercial Mortgage Trust 2004-C2
[For Xxxxxx Trust Mortgage Loans, with a copy to:
LaSalle Bank National Association, as Custodian
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--LB-UBS Commercial
Mortgage Trust 2004-C2]
Re: LB-UBS Commercial Mortgage Trust 2004-C2,
Commercial Mortgage Pass-Through Certificates, Series 2004-C2
In connection with the administration of the Mortgage Files held by you as
Trustee (or by a Custodian on your behalf), under that certain Pooling and
Servicing Agreement dated as of March 11, 2004 (the "Pooling and Servicing
Agreement"), by and between Structured Asset Securities Corporation II, as
depositor, Midland Loan Services, Inc., as master servicer (the "Master
Servicer") and as special servicer (the "Special Servicer") and Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee), the undersigned hereby requests a release
of the Mortgage File (or the portion thereof specified below) held by you as
Trustee or by a Custodian on your behalf, with respect to the following
described Mortgage Loan for the reason indicated below.
Property Name: _______________________________________________________
Address: _____________________________________________________________
Control 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 undersigned hereby certifies
that all amounts received in connection with the Mortgage
Loan that are required
D-2-1
to be credited to the Custodial Accounts pursuant to the
Pooling and Servicing Agreement, have been or will be so
credited.
_____ 2. Other. (Describe) __________________________________________
____________________________________________________________
____________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof (or within such
longer period as we have indicated as part of our reason for the request),
unless the Mortgage Loan has been paid in full or otherwise liquidated, in which
case the Mortgage File (or such portion thereof) will be retained by us
permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
MIDLAND LOAN SERVICES, INC.
By:
------------------------------------
Name:
Title:
D-2-2
EXHIBIT E
FORM OF LOAN PAYOFF NOTIFICATION REPORT
LOAN PAYMENT NOTIFICATION REPORT
as of _____________________
-------------------------------------------------------------------------------
X0 X00 X00 X00 X0 X0 X00
-------------------------------------------------------------------------------
Scheduled
Short Name Mortgage Paid
Prospectus (When Property Loan Thru Current
ID Appropriate) Type State Balance Date Interest Rate
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Scheduled Payments
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Unscheduled Payment
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Total: $
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
X0 X00 X00 X00 Servicer Estimated Information
----------------------------------------------------------------------------------------
Preceding
Fiscal Yr. Expected Expected
Prospectus Maturity DSCR Most Recent Yield Payment Distribution
ID Date NCR DSCR NCF Maintenance Date Date
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Scheduled Payments
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Unscheduled Payment
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
Total:
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
The Borrower has only requested the information to pay-off. This does not
indicate a definite payment.
E-1
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - LB-UBS Commercial Mortgage Trust 2004-C2
Re: LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage Pass-
Through Certificates, Series 2004-C2, Class _____, [having an initial
aggregate [Certificate Principal Balance] [Certificate Notional
Amount] as of April 7, 2004 (the "Closing Date") of $__________]
[representing a ____% Percentage Interest in the subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of March 11, 2004, between Structured Asset
Securities Corporation II, as Depositor, Midland Loan Services, Inc., as Master
Servicer, Midland Loan Services, Inc., as Special Servicer and Xxxxx Fargo Bank,
N.A., as Trustee. All capitalized terms used herein and not otherwise herein
defined shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby certifies, represents and warrants to
you, as Certificate Registrar, and for the benefit of the Trustee and the
Depositor, that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer such Certificates free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any offer
to buy or accept a transfer, pledge or other disposition of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security with any person in
any manner, (d) made any general solicitation with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a)
through (e) hereof) would constitute a distribution of the Transferred
Certificates under the Securities Act of 1933, as amended (the "Securities
Act"), would render the disposition of the Transferred
F-1-1
Certificates a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state
securities laws.
Very truly yours,
----------------------------------------
(Transferor)
By:
------------------------------------
Name:
Title:
F-1-2
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - LB-UBS Commercial Mortgage Trust 2004-C2
Re: LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage
Pass-Through Certificates, Series 2004-C2, Class ___, [having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of April 7, 2004 (the "Closing Date") of
$__________] [representing a ____% Percentage Interest in the
subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________________ (the "Transferor") to _____________________________
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of March 11, 2004, between
Structured Asset Securities Corporation II, as Depositor, Midland Loan Services,
Inc., as Master Servicer, Midland Loan Services, Inc., as Special Servicer and
Xxxxx Fargo Bank, N.A., as Trustee. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, and for the benefit of the Trustee
and the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
is being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer and to whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (b) pursuant to another exemption
from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Trust Mortgage
Loans, (d) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, and (e) all related matters, that it has requested.
F-2A-1
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgement below.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
Title:
Nominee Acknowledgement
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
----------------------------------------
(Nominee)
By:
------------------------------------
Name:
Title:
F-2A-2
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended, because (i) [the Transferee] [each of the Transferee's equity
owners] owned and/or invested on a discretionary basis
$______________________(1) in securities (other than the excluded
securities referred to below) as of the end of such entity's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and
(ii) the Transferee satisfies the criteria in the category marked below.
_____ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S. territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the state
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Transferred Certificates in the case of a U.S. bank, and
not more than 18 months preceding such date of sale in the case
of a foreign bank or equivalent institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision
over any such institutions, or is a foreign savings and loan
association
----------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
F-2A-3
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association,
and not more than 18 months preceding such date of sale in the
case of a foreign savings and loan association or equivalent
institution.
_____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
_____ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
_____ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency
or instrumentality of the state or its political subdivisions,
for the benefit of its employees.
_____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974.
_____ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
_____ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule 144A.
_____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete Annex 2
rather than this Annex 1)________________________________________
_________________________________________________________________
________________________________________________________________.
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment to
or subscription by such Person, if such Person is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities
were valued at market. Further, in determining
F-2A-4
such aggregate amount, the Transferee may have included securities owned by
subsidiaries of such Person, but only if such subsidiaries are consolidated
with such Person in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned,
consolidated subsidiary of another enterprise and such Person is not itself
a reporting company under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one
or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Transferee is a bank or savings and loan as provided above, the Transferee
agrees that it will furnish to such parties any updated annual financial
statements that become available on or before the date of such purchase,
promptly after they become available.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant
to which the Transferred Certificates were issued.
--------------------------------------
Print Name of Transferee
By:
----------------------------------
Name:
Title:
Date:
F-2A-5
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity purchasing the Transferred Certificates (the "Transferee") or,
if the Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended, because the Transferee is part of a Family of Investment Companies
(as defined below), is an executive officer of the investment adviser (the
"Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the
end of the Transferee's most recent fiscal year. For purposes of
determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities
was used, unless the Transferee or any member of the Transferee's Family of
Investment Companies, as the case may be, reports its securities holdings
in its financial statements on the basis of their market value, and no
current information with respect to the cost of those securities has been
published, in which case the securities of such entity were valued at
market.
_____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
_____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies,
F-2A-6
(ii) bank deposit notes and certificates of deposit, (iii) loan
participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies,
the securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one
or more sales to the Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until
such notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
F-2A-7
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant
to which the Transferred Certificates were issued.
--------------------------------------
Print Name of Transferee or Adviser
By:
----------------------------------
Name:
Title:
Date:
IF AN ADVISER:
--------------------------------------
Print Name of Transferee
Date:
--------------------------------
F-2A-8
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - LB-UBS Commercial Mortgage Trust 2004-C2
Re: LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage
Pass-Through Certificates, Series 2004-C2, Class _____,[having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of April 7, 2004 (the "Closing Date") of
$__________] [representing a ____% Percentage Interest in the
subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of March 11, 2004, between Structured Asset
Securities Corporation II, as Depositor, Midland Loan Services, Inc., as Master
Servicer, Midland Loan Services, Inc., as Special Servicer and Xxxxx Fargo Bank,
N.A., as Trustee. All capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, and for the benefit of the Trustee and the Depositor,
that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer
in connection with any distribution thereof, in whole or in part, in any
manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated so to register or qualify the Class of Certificates to which the
Transferred Certificates belong, and (c) neither a Transferred Certificate
nor any security issued in exchange therefor or in lieu thereof may be
resold or transferred unless it is (i) registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable state
securities laws or (ii) sold or transferred in transactions which are
exempt from such registration and qualification and the Certificate
Registrar has received: (A) a certification from the Certificateholder
desiring to effect such transfer substantially in the form attached as
Exhibit F-1 to the Pooling and Servicing Agreement and a certification from
such Certificateholder's prospective transferee substantially in the form
attached either as Exhibit F-2A to the Pooling and Servicing Agreement or
as Exhibit
F-2B-1
F-2B to the Pooling and Servicing Agreement; or (B) an opinion of counsel
satisfactory to the Trustee with respect to, among other things, the
availability of such exemption from registration under the Securities Act,
together with copies of the written certification(s) from the transferor
and/or transferee setting forth the facts surrounding the transfer upon
which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate or interest therein, except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that each
Transferred Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO
(A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any offer
to buy or accept a pledge, disposition or other transfer of any Transferred
Certificate, any interest in any Transferred Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Transferred Certificate, any interest in any
Transferred Certificate or any other similar security with any person in
any manner, (d) made any general solicitation with respect to any
Transferred Certificate, any interest in any Transferred
F-2B-2
Certificate or any other similar security by means of general advertising
or in any other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of the
Transferred Certificates under the Securities Act, would render the
disposition of the Transferred Certificates a violation of Section 5 of the
Securities Act or any state securities law or would require registration or
qualification of the Transferred Certificates pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any
person to act, in any manner set forth in the foregoing sentence with
respect to any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, (d) the nature, performance and servicing of the Mortgage
Loans, and (e) all related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or
an entity in which all of the equity owners come within such paragraphs.
The Transferee has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an
investment in the Transferred Certificates; the Transferee has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Transferee is able to bear the
economic risks of such investment and can afford a complete loss of such
investment.
F-2B-3
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgement below.
Very truly yours,
--------------------------------------
(Transferee)
By:
----------------------------------
Name:
Title:
Nominee Acknowledgement
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
--------------------------------------
(Nominee)
By:
----------------------------------
Name:
Title:
F-2B-4
EXHIBIT F-2C
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage
Pass-Through Certificates, Series 2004-C2, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of April 7, 2004 (the "Closing Date") of
$__________
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
captioned Certificates (the "Transferred Certificates"), pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of March 11, 2004, between Structured Asset Securities
Corporation II, as Depositor, Midland Loan Services, Inc., as Master Servicer,
Midland Loan Services, Inc., as Special Servicer and Xxxxx Fargo Bank, N.A., as
Trustee. All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to and agrees with you, and
for the benefit of the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the Transfer to
it of the Transferor's interest in the Transferred Certificates is being
made in reliance on Rule 144A. The Transferee is acquiring such interest in
the Transferred Certificates for its own account or for the account of
another Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated so to register or qualify the Transferred Certificates and (c) no
interest in the Transferred Certificates may be resold or transferred
unless (i) such Certificates are registered pursuant to the Securities Act
and registered or qualified pursuant any applicable state securities laws,
or (ii) such interest is sold or transferred in a transaction which is
exempt from such registration and qualification and the Transferor desiring
to effect such transfer has received (A) a certificate from such
Certificate Owner's prospective transferee substantially in the form
attached as Exhibit F-2C to the Pooling and Servicing Agreement or (B) an
opinion of counsel to
F-2C-1
the effect that, among other things, such prospective transferee is a
Qualified Institutional Buyer and such transfer may be made without
registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates or any interest therein except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that the
Transferred Certificates will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO
(A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
F-2C-2
4. The Transferee understands that, if the Transferred Certificate is
a Class T Certificate, it may not sell or otherwise transfer such
Transferred Certificate or any interest therein unless it has provided
prior written notice of such transfer (together with a copy of the
Transferee Certificate in the form hereof executed by the proposed
transferee of such Transferred Certificate) to Structured Asset Securities
Corporation II, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx Xxxxxxx--LB-UBS Commercial Mortgage Trust 2004-C2, facsimile number:
(000) 000-0000.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificates, and (f) all related matters, that it has
requested.
Very truly yours,
--------------------------------------
(Transferee)
By:
----------------------------------
Name:
Title:
F-2C-3
ANNEX 1 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Structured Asset Securities
Corporation II with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity acquiring interests in the Transferred Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) [the Transferee] [each of the Transferee's equity
owners] owned and/or invested on a discretionary basis $____________(1) in
securities (other than the excluded securities referred to below) as of the
end of such entity's most recent fiscal year (such amount being calculated
in accordance with Rule 144A) and (ii) the Transferee satisfies the
criteria in the category marked below.
_____ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S. territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the state
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Transferred Certificates in the case of a U.S. bank, and
not more than 18 months preceding such date of sale in the case
of a foreign bank or equivalent institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision
over any such institutions or is a foreign savings and loan
----------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
F-2C-4
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Transferred Certificates in the case of a U.S. savings and
loan association, and not more than 18 months preceding such date
of sale in the case of a foreign savings and loan association or
equivalent institution.
_____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
_____ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
_____ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency
or instrumentality of the state or its political subdivisions,
for the benefit of its employees.
_____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974.
_____ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
_____ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule 144A.
_____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete Annex 2
rather than this Annex 1.)
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment to
or subscription by such Person, if such Person is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities
were valued at market. Further, in determining such aggregate amount, the
Transferee may have included securities owned by subsidiaries of such
Person, but only if such subsidiaries are consolidated with such Person in
its financial
F-2C-5
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under
such Person's direction. However, such securities were not included if such
Person is a majority-owned, consolidated subsidiary of another enterprise
and such Person is not itself a reporting company under the Securities
Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the
Transferred Certificates are relying and will continue to rely on the
statements made herein because one or more Transfers to the Transferee may
be in reliance on Rule 144A.
___ ___ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a
third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of
such third party has been established by the Transferee through one or more
of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's acquisition of any
interest in of the Transferred Certificates will constitute a reaffirmation
of this certification as of the date of such acquisition. In addition, if
the Transferee is a bank or savings and loan as provided above, the
Transferee agrees that it will furnish to such parties any updated annual
financial statements that become available on or before the date of such
acquisition, promptly after they become available.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which
the Transferred Certificates were issued.
--------------------------------------
(Transferee)
By:
----------------------------------
Name:
Title:
Date:
F-2C-6
ANNEX 2 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Structured Asset Securities
Corporation II with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity acquired interests the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A"), because the Transferee is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii) as marked
below, the Transferee alone owned and/or invested on a discretionary basis,
or the Transferee's Family of Investment Companies owned, at least
[$100,000,000] in securities (other than the excluded securities referred
to below) as of the end of the Transferee's most recent fiscal year. For
purposes of determining the amount of securities owned by the Transferee or
the Transferee's Family of Investment Companies, the cost of such
securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports
its securities holdings in its financial statements on the basis of their
market value, and no current information with respect to the cost of those
securities has been published, in which case the securities of such entity
were valued at market.
_____ The Transferee owned and/or invested on a discretionary
basis $___________________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
_____ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
F-2C-7
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit notes
and certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, or owned by the Transferee's Family
of Investment Companies, the securities referred to in this paragraph were
excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one
or more Transfers to the Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a
third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of
such third party has been established by the Transferee through one or more
of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until
such notice, the Transferee's acquisition of any interest in the
Transferred Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such acquisition.
F-2C-8
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which
the Transferred Certificates were issued.
--------------------------------------
(Transferee or Adviser)
By:
----------------------------------
Name:
Title:
Date:
IF AN ADVISER:
Print Name of Transferee
--------------------------------------
Date:
F-2C-9
EXHIBIT F-2D
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage
Pass-Through Certificates, Series 2004-C2, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of April 7, 2004 (the "Closing Date") of
$__________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
captioned Certificates (the "Transferred Certificates"), pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of March 11, 2004, between Structured Asset Securities
Corporation II, as Depositor, Midland Loan Services, Inc., as Master Servicer,
Midland Loan Services, Inc., as Special Servicer and Xxxxx Fargo Bank, N.A., as
Trustee. All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to and agrees with you, and
for the benefit of the Depositor, that the Transferee is not a United States
Securities Person.
For purposes of this certification, "United States Securities Person"
means (i) any natural person resident in the United States, (ii) any partnership
or corporation organized or incorporated under the laws of the United States;
(iii) any estate of which any executor or administrator is a United States
Securities Person, other than any estate of which any professional fiduciary
acting as executor or administrator is a United States Securities Person if an
executor or administrator of the estate who is not a United States Securities
Person has sole or shared investment discretion with respect to the assets of
the estate and the estate is governed by foreign law, (iv) any trust of which
any trustee is a United States Securities Person, other than a trust of which
any professional fiduciary acting as trustee is a United States Securities
Person if a trustee who is not a United States Securities Person has sole or
shared investment discretion with respect to the trust assets and no beneficiary
of the trust (and no settlor if the trust is revocable) is a United States
Securities Person, (v) any agency or branch of a foreign entity located in the
United States, unless the agency or branch operates for valid business reasons
and is engaged in the business of insurance or banking and is subject to
substantive insurance or banking regulation, respectively, in the jurisdiction
where located, (vi) any non-discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary for the benefit or
account of a United States Securities Person, (vii) any discretionary account or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident in the
X-0X-0
Xxxxxx Xxxxxx, other than one held for the benefit or account of a non-United
States Securities Person by a dealer or other professional fiduciary organized,
incorporated or (if any individual) resident in the United States, (viii) any
partnership or corporation if (a) organized or incorporated under the laws of
any foreign jurisdiction and (b) formed by a United States Securities Person
principally for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated, and owned, by
"accredited investors" (as defined in Rule 501(a)) under the United States
Securities Act of 1933, as amended (the "Securities Act"), who are not natural
persons, estates or trusts; provided, however, that the International Monetary
Fund, the International Bank for Reconstruction and Development, the
Inter-American Development Bank, the Asian Development Bank, the African
Development Bank, the United Nations and their agencies, affiliates and pension
plans, any other similar international organizations, their agencies, affiliates
and pension plans shall not constitute United States Securities Persons.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: ,
---------- -----
By:
-----------------------------------------
As, or agent for, the beneficial owner(s)
of the Certificates to which this
certificate relates.
F-2D-2
EXHIBIT G-1
FORM I OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (DEFINITIVE PRIVATELY OFFERED CERTIFICATES)
_____________, 20__
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - LB-UBS Commercial Mortgage Trust 2004-C2
Re: LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage
Pass-Through Certificates, Series 2004-C2 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial aggregate [Certificate Principal
Balance] [Certificate Notional Amount] as of April 7, 2004 (the "Closing Date")
of $__________] [evidencing a ____% Percentage Interest in the subject Class]
(the "Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of March 11, 2004, between
Structured Asset Securities Corporation II, as depositor, Midland Loan Services,
Inc., as master servicer, Midland Loan Services, Inc., as special servicer and
Xxxxx Fargo Bank, N.A., as trustee. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you as Certificate Registrar, as follows (check the applicable paragraph):
_____ The Transferee (A) is not an employee benefit plan or other
retirement arrangement, including an individual retirement
account or annuity, a Xxxxx plan or a collective investment fund
or separate account in which such plans, accounts or arrangements
are invested, including, without limitation, an insurance company
general account, that is subject to ERISA or the Code (each, a
"Plan"), and (B) is not directly or indirectly purchasing the
Transferred Certificates on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or
_____ The Transferee is using funds from an insurance company general
account to acquire the Transferred Certificates, however, the
purchase and holding of such Certificates by such Person is
exempt from the prohibited transaction provisions of Sections 406
and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Section 4975 of the Code, by reason of Sections I
and III of Prohibited Transaction Class Exemption 95-60.
_____ The Transferred Certificates are rated in one of the four highest
generic rating categories by one of the Rating Agencies and are
being acquired by or on behalf
G-1-1
of a Plan in reliance on Prohibited Transaction Exemption 91-14;
and such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by
the Trustee, the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, any Sub-Servicer, any Person
responsible for servicing the GIC Office Trust Mortgage Loan or
any GIC Office REO Property, any Exemption-Favored Party or any
Mortgagor with respect to Mortgage Loans constituting more than
5% of the aggregate unamortized principal balance of all the
Mortgage Loans determined on the date of the initial issuance of
the Certificates, or by any Affiliate of such Person, and (Z)
agrees that it will obtain from each of its Transferees that are
Plans, a written representation that such Transferee, if a Plan,
satisfies the requirements of the immediately preceding clauses
(X) and (Y), together with a written agreement that such
Transferee will obtain from each of its Transferees that are
Plans a similar written representation regarding satisfaction of
the requirements of the immediately preceding clauses (X) and
(Y).
Very truly yours,
------------------------------------
(Transferee)
By:
---------------------------------
Name:
Title:
G-1-2
EXHIBIT G-2
FORM II OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA
(BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES)
[Date]
[TRANSFEROR]
Re: LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage
Pass-Through Certificates, Series 2004-C2 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in
Class ___ Certificates [having an initial aggregate [Certificate Principal
Balance] [Certificate Notional Amount] as of April 7, 2004 (the "Closing Date")
of $__________] [evidencing a ____% Percentage Interest in the related Class]
(the "Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of March 11, 2004(the "Pooling and Servicing Agreement"), among Structured
Asset Securities Corporation II, as depositor, Midland Loan Services, Inc., as
master servicer, Midland Loan Services, Inc., as special servicer and Xxxxx
Fargo Bank, N.A., as trustee. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you as follows (check the applicable paragraph):
_____ The Transferee (A) is not an employee benefit plan or other
retirement arrangement, including an individual retirement
account or annuity, a Xxxxx plan or a collective investment fund
or separate account in which such plans, accounts or arrangements
are invested, including, without limitation, an insurance company
general account, that is subject to ERISA or the Code (each, a
"Plan"), and (B) is not directly or indirectly purchasing an
interest in the Transferred Certificates on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan;
_____ The Transferee is using funds from an insurance company general
account to acquire an interest in the Transferred Certificates,
however, the purchase and holding of such interest by such Person
is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on
such prohibited transactions by Sections 4975(a) and (b) of the
Code, by reason of Sections I and III of Prohibited Transaction
Class Exemption 95-60.
_____ The Transferred Certificates are rated in one of the four highest
generic rating categories by one of the Rating Agencies and an
interest in such Certificates is
G-2-1
being acquired by or on behalf of a Plan in reliance on
Prohibited Transaction Exemption 91-14 and such Plan (X) is an
accredited investor as defined in Rule 501(a)(1) of Regulation D
of the Securities Act, (Y) is not sponsored (within the meaning
of Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any
Mortgage Loan Seller, the Master Servicer, the Special Servicer,
any Sub-Servicer, any Person responsible for servicing the GIC
Office Trust Mortgage Loan or any GIC Office REO Property, any
Exemption-Favored Party or any Mortgagor with respect to Mortgage
Loans constituting more than 5% of the aggregate unamortized
principal balance of all the Mortgage Loans determined on the
date of the initial issuance of the Certificates, or by any
Affiliate of such Person, and (Z) agrees that it will obtain from
each of its Transferees that are Plans, a written representation
that such Transferee, if a Plan, satisfies the requirements of
the immediately preceding clauses (X) and (Y), together with a
written agreement that such Transferee will obtain from each of
its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately
preceding clauses (X) and (Y).
Very truly yours,
------------------------------------
(Transferee)
By:
---------------------------------
Name:
Title:
G-2-2
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
REGARDING RESIDUAL INTEREST CERTIFICATES
TRANSFER AFFIDAVIT PURSUANT TO
SECTIONS 860D(a)(6)(A) and 860E(e)(4) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Re: LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage
Pass-Through Certificates, Series 2004-C2 (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of March 11, 2004,
between Structured Asset Securities Corporation II, as Depositor,
Midland Loan Services, Inc., as Master Servicer, Midland Loan
Services, Inc., as Special Servicer and Xxxxx Fargo Bank, N.A.,
as Trustee
STATE OF )
) ss.: ____________________
COUNTY OF )
The undersigned declares that, to the best knowledge and belief of the
undersigned, the following representations are true, correct and complete:
1. ______________________________ (the "Purchaser"), is acquiring
[Class R-I] [Class R-II] [Class R-III] Certificates representing ________% of
the residual interest in [each of] the real estate mortgage investment
conduit[s] ([each,] a "REMIC") designated as ["REMIC I"] ["REMIC II"] ["REMIC
III"], [respectively], relating to the Certificates for which an election is to
be made under Section 860D of the Internal Revenue Code of 1986, as amended (the
"Code").
2. The Purchaser is not a "Disqualified Organization" (as defined
below), and that the Purchaser is not acquiring the [Class R-I] [Class R-II]
[Class R-III] Certificates for the account of, or as agent or nominee of, or
with a view to the transfer of direct or indirect record or beneficial ownership
thereof, to a Disqualified Organization. For the purposes hereof, a Disqualified
Organization is any of the following: (i) the United States, (ii) any state or
political subdivision thereof, (iii) any foreign government, (iv) any
international organization, (v) any agency or instrumentality of any of the
foregoing, (vi) any tax-exempt organization (other than a cooperative described
in Section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code unless such organization is subject to the tax imposed by Section 511
of the Code, (vii) any organization described in Section 1381(a)(2)(C) of the
Code, or (viii) any other entity designated as a "disqualified organization" by
relevant legislation amending the REMIC Provisions and in effect at or proposed
to be effective as of the time of determination. In addition, a corporation will
not be treated as an instrumentality of the United States or of any state or
political subdivision thereof if all of its activities are subject to tax
(except for the Federal Home Loan Mortgage Corporation) and a majority of its
board of directors is not selected by such governmental unit. The terms "United
States" and "international organization" shall have the meanings set forth in
Section 7701 of the Code.
H-1-1
3. The Purchaser is not a foreign permanent establishment or a fixed
base (within the meaning of any applicable income tax treaty between the United
States and any foreign jurisdiction) of a United States Tax Person.
4. The Purchaser will not cause the income from the [Class R-I] [Class
R-II] [Class R-III] Certificates to be attributable to a foreign permanent
establishment or fixed base (within the meaning of any applicable income tax
treaty between the United States and any foreign jurisdiction) of a United
States Tax Person.
5. The Purchaser acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
[Class R-I] [Class R-II] [Class R-III] Certificates to a Disqualified
Organization.
6. No purpose of the acquisition of the [Class R-I] [Class R-II]
[Class R-III] Certificates is to impede the assessment or collection of tax
7. [Check the statement that applies]
o If the Transferor requires the safe harbor under Treasury regulations
section 1.860E-1 to apply:
a) In accordance with Treasury regulations section 1.860E-1, the
Purchaser (i) is an "eligible corporation" as defined in Section
1.860E-1(c)(6)(i) of the Treasury regulations, as to which the income of
[Class R-I] [Class R-II] [Class R-III] Certificates will only be subject to
taxation in the United States, (ii) has, and has had in each of its two
preceding fiscal years, gross assets for financial reporting purposes
(excluding any obligation of a person related to the transferee within the
meaning of Section 1.860E-1(c)(6)(ii) of the Treasury regulations or any
other assets if a principal purpose for holding or acquiring such asset is
to satisfy this condition) in excess of $100 million and net assets of $10
million, and (iii) hereby agrees only to transfer the Certificate to
another corporation meeting the criteria set forth in Treasury regulations
section 1.860E-1; [_]
or
b) The Purchaser is a United States Tax Person and the consideration
paid to the Purchaser for accepting the [Class R-I] [Class R-II] [Class
R-III] Certificates is greater than the present value of the anticipated
net federal income taxes and tax benefits ("Tax Liability Present Value")
associated with owning such Certificates, with such present value computed
using a discount rate equal to the "Federal short-term rate" prescribed by
Section 1274 of the Code as of the date hereof or, to the extent it is not,
if the Transferee has asserted that it regularly borrows, in the ordinary
course of its trade or business, substantial funds from unrelated third
parties at a lower interest rate than such applicable federal rate and the
consideration paid to the Purchaser is greater than the Tax Liability
Present Value using such lower interest rate as the discount rate, the
transactions with the unrelated third party lenders, the interest rate or
rates, the date or dates of such transactions, and the maturity dates or,
in the case of adjustable rate debt instruments, the relevant adjustment
dates or periods, with respect to such borrowings, are accurately stated in
Exhibit A to this letter [_]
H-1-2
o If the Transferor does not require the safe harbor under Treasury
regulations section 1.860E-1 to apply:
a) The Purchaser is a "United States person" as defined in Section
7701(a) of the Code and the regulations promulgated thereunder (the
Purchaser's U.S. taxpayer identification number is __________). The
Purchaser is not classified as a partnership under the Code (or, if so
classified, all of its beneficial owners are United States persons); [_]
or
b) The Purchaser is not a United States person. However, the
Purchaser:
(a) conducts a trade or business within the United States and,
for purposes of Treasury regulations section 1.860G-3(a)(3), is
subject to tax under Section 882 of the Code;
(b) understands that, for purposes of Treasury regulations
section 1.860E-1(c)(4)(ii), as a holder of a [Class R-I] [Class R-II]
[Class R-III] Certificate for United States federal income tax
purposes, it may incur tax liabilities in excess of any cash flows
generated by such [Class R-I] [Class R-II] [Class R-III] Certificate;
(c) intends to pay the taxes associated with holding a [Class
R-I] [Class R-II] [Class R-III] Certificate;
(d) is not classified as a partnership under the Code (or, if so
classified, all of its beneficial owners either satisfy clauses (a),
(b) and (c) of this sentence or are United States persons); and
(e) has furnished the Transferor and the Trustee with an
effective IRS Form W-8ECI or successor form and will update such form
as may be required under the applicable Treasury regulations [_]
8. The Purchaser historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and
the Purchaser intends to pay taxes associated with holding the [Class R-I]
[Class R-II] [Class R-III] Certificates as they become due.
9. The Purchaser understands that it may incur tax liabilities
with respect to the [Class R-I] [Class R-II] [Class R-III] Certificates in
excess of any cash flows generated by such Certificates.
10. The Purchaser will not transfer the [Class R-I] [Class R-II]
[Class R-III] Certificates to any person or entity as to which the
Purchaser has not received an affidavit substantially in the form of this
affidavit or to any person or entity as to which the Purchaser has actual
knowledge that the requirements set forth in paragraphs 2, 3, 4, 6 or 8
hereof are not satisfied, or to any person or entity with respect to which
the Purchaser has not (at the time of such transfer) satisfied the
requirements under the Code to conduct a reasonable investigation of
H-1-3
the financial condition of such person or entity (or its current beneficial
owners if such person or entity is classified as a partnership under the
Code).
11. The Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the
prohibition against transferring the [Class R-I] [Class R-II] [Class R-III]
Certificates to a Disqualified Organization, an agent thereof or a person
that does not satisfy the requirements of paragraphs 6 and 8.
12. The Purchaser consents to the designation of the Trustee as
the agent of the Tax Matters Person of [REMIC I] [REMIC II] [REMIC III]
pursuant to Section 10.01(d) of the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the meanings
assigned thereto in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
duly executed on its behalf by its duly authorized officer this ___ day of
_______________.
By:
---------------------------------
Name:
Title:
Personally appeared before me ___________________________ and
___________________________, known or proved to me to be the same persons who
executed the foregoing instrument and to be a _______________________ and
_______________________ of the Purchaser, and acknowledged to me that he/she
each executed the same at his/her free act and deed and at the free act and deed
of the Purchaser.
Subscribed and sworn before me this
____ day of _______________.
-------------------------------------
Notary Public
H-1-4
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
REGARDING RESIDUAL INTEREST CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - LB-UBS Commercial Mortgage Trust 2004-C2
Re: LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage
Pass-Through Certificates, Series 2004-C2 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in such Class (the "Residual Interest Certificates"). The
Certificates, including the Residual Interest Certificates, were issued pursuant
to the Pooling and Servicing Agreement, dated as of March 11, 2004(the "Pooling
and Servicing Agreement"), between Structured Asset Securities Corporation II,
as depositor, Midland Loan Services, Inc., as master servicer, Midland Loan
Services, Inc., as special servicer and Xxxxx Fargo Bank, N.A., as trustee. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Interest Certificates by the Transferor to the Transferee is or
will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered
to you a Transfer Affidavit and Agreement in the form attached to the
Pooling and Servicing Agreement as Exhibit H-1. The Transferor does not
know or believe that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or
the beneficial owners of the Transferee if it is classified as a
partnership under the Internal Revenue Code of 1986, as amended) as
contemplated by Treasury regulations section 1.860E-1(c)(4)(i) and, as a
result of that investigation, the Transferor has determined that the
Transferee has historically paid its debts as they became due and has found
no significant evidence to indicate that the Transferee will not continue
to pay its debts as they become due in the future. The Transferor
understands that the transfer of the Residual Interest Certificates may not
be respected for United States
H-2-1
income tax purposes (and the Transferor may continue to be liable for
United States income taxes associated therewith) unless the Transferor has
conducted such an investigation.
Very truly yours,
------------------------------------
(Transferor)
By:
---------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF NOTICE AND ACKNOWLEDGEMENT
[Date]
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Surveillance Department
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the Pooling
and Servicing Agreement, dated as of March 11, 2004 and relating to LB-UBS
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2004-C2 (the "Agreement"). Capitalized terms used but not otherwise defined
herein shall have respective meanings assigned to them in the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
________________ to serve as the Special Servicer under the Agreement.
The designation of __________________ as Special Servicer will become
final if certain conditions are met and you deliver to _________________, the
trustee under the Agreement (the "Trustee"), written confirmation that if the
person designated to become the Special Servicer were to serve as such, such
event would not result in the qualification, downgrade or withdrawal of the
rating or ratings assigned by you to one or more Classes of the Certificates.
Accordingly, such confirmation is hereby requested as soon as possible.
I-1-1
Please acknowledge receipt of this notice by signing the enclosed copy
of this notice where indicated below and returning it to the Trustee, in the
enclosed stamped self-addressed envelope.
Very truly yours,
XXXXX FARGO BANK, N.A.,
as Trustee
By:
---------------------------------
Name:
Title:
Receipt acknowledged:
STANDARD & POOR'S RATINGS SERVICES
By:
---------------------------------------
Name:
Title:
Date:
XXXXX'X INVESTORS SERVICE, INC.
By:
---------------------------------------
Name:
Title:
Date:
I-1-2
EXHIBIT I-2
FORM OF ACKNOWLEDGEMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[DEPOSITOR]
Re: LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage
Pass-Through Certificates, Series 2004-C2
Ladies and Gentlemen:
Pursuant to [Section 6.09 of the Pooling and Servicing Agreement],
dated as of March 11, 2004, relating to LB-UBS Commercial Mortgage Trust
2004-C2, Commercial Mortgage Pass-Through Certificates, Series 2004-C2 (the
"Agreement"), the undersigned hereby agrees with all the other parties to the
Agreement that the undersigned shall serve as Special Servicer under, and as
defined in, the Agreement. The undersigned hereby acknowledges that, as of the
date hereof, it is and shall be a party to the Agreement and bound thereby to
the full extent indicated therein in the capacity of Special Servicer. The
undersigned hereby makes, as of the date hereof, the representations and
warranties set forth in Section 3.24 of the Agreement, with the following
corrections with respect to type of entity and jurisdiction of organization:
_______________.
[NAME OF PROPOSED SPECIAL SERVICER]
By:
---------------------------------
Name:
Title:
I-2-1
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
J-1
SCHEDULE 1
This Schedule 1 is attached to and incorporated in a financing
statement pertaining to Structured Asset Securities Corporation II, as depositor
(referred to as the "Debtor" for the purpose of this financing statement only),
and Xxxxx Fargo Bank, N.A., as trustee for the holders of the LB-UBS Commercial
Mortgage Trust 2004-C2, Commercial Mortgage Pass-Through Certificates, Series
2004-C2 (referred to as the "Secured Party" for purposes of this financing
statement only), under that certain Pooling and Servicing Agreement, dated as of
March 11, 2004(the "Pooling and Servicing Agreement"), between the Debtor, as
depositor, the Secured Party, as trustee (the "Trustee"), Midland Loan Services,
Inc., as master servicer (the "Master Servicer"), Midland Loan Services, Inc.,
as special servicer (the "Special Servicer"), relating to the issuance of the
LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage Pass-Through
Certificates, Series 2004-C2 (the "Series 2004-C2 Certificates"). Capitalized
terms used herein and not defined shall have the respective meanings given to
them in the Pooling and Servicing Agreement.
The attached financing statement covers all of the Debtor's right
(including the power to convey title thereto), title and interest in and to the
Trust Fund created pursuant to the Pooling and Servicing Agreement, consisting
of the following:
(1) the mortgage loans listed on the Trust Mortgage Loan Schedule
attached hereto as Exhibit A (the "Mortgage Loans");
(2) the note or other evidence of indebtedness of the related borrower
under each Mortgage Loan (the "Mortgage Note"), the related mortgage, deed of
trust or other similar instrument securing such Mortgage Note (the "Mortgage")
and each other legal, credit and servicing document related to such Mortgage
Loan (collectively with the related Mortgage Note and Mortgage, the "Mortgage
Loan Documents");
(3) (a) the Custodial Accounts and the Defeasance Deposit Account
required to be maintained by the Master Servicer pursuant to the Pooling and
Servicing Agreement, (b) all funds from time to time on deposit in the Custodial
Accounts and the Defeasance Deposit Account, (c) the investments of any such
funds consisting of securities, instruments or other obligations, and (d) the
general intangibles consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and interest and the
right to enforce the related payment obligations, arising from or under any such
investments;
(4) all REO Property acquired in respect of defaulted Mortgage Loans;
(5) (a) the REO Accounts required to be maintained by the Special
Servicer pursuant to the Pooling and Servicing Agreement, (b) all funds from
time to time on deposit in the REO Accounts, (c) the investments of any such
funds consisting of securities, instruments or other obligations, and (d) the
general intangibles consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and interest and the
right to enforce the related payment obligations, arising from or under any such
investments;
(6) (a) the Servicing Accounts and the Reserve Accounts required to be
maintained by the Master Servicer and/or the Special Servicer pursuant to the
Pooling and Servicing Agreement, (b)
J-2
all funds from time to time on deposit in the Servicing Accounts and the Reserve
Accounts, (c) the investments of any such funds consisting of securities,
instruments or other obligations, and (d) the general intangibles consisting of
the contractual right to payment, including, without limitation, the right to
payments of principal and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
(7) (a) the Interest Reserve Account required to be maintained by the
Secured Party pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Interest Reserve Account, (c) the
investments of any such funds consisting of securities, instruments or other
obligations, and (d) the general intangibles consisting of the contractual right
to payment, including, without limitation, the right to payments of principal
and interest and the right to enforce the related payment obligations, arising
from or under any such investments;
(8) (a) the Collection Account required to be maintained by the
Secured Party pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Collection Account, (c) the investments of
any such funds consisting of securities, instruments or other obligations, and
(d) the general intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of principal and interest
and the right to enforce the related payment obligations, arising from or under
any such investments;
(9) all insurance policies, including the right to payments
thereunder, with respect to the Mortgage Loans required to be maintained
pursuant to the Mortgage Loan Documents and the Pooling and Servicing Agreement,
transferred to the Trust and to be serviced by the Master Servicer or Special
Servicer pursuant to the Pooling and Servicing Agreement;
(10) any and all general intangibles (as defined in the Uniform
Commercial Code) consisting of, arising from or relating to any of the
foregoing; and
(11) any and all income, payments, proceeds and products of any of the
foregoing.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF ALL THE DEBTOR'S RIGHT,
TITLE AND INTEREST IN, TO AND UNDER THE MORTGAGE LOANS, THE MORTGAGE NOTES, THE
RELATED MORTGAGES AND THE OTHER RELATED MORTGAGE LOAN DOCUMENTS EVIDENCED BY THE
SERIES 2004-C2 CERTIFICATES, AND THIS FILING SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT A SALE HAS NOT OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES
SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN
INSTRUMENT WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN
ANY APPLICABLE JURISDICTION, OR THAT A FILING IS NECESSARY TO PERFECT THE
OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY WITH RESPECT TO THE MORTGAGE
LOANS OR IN ANY MORTGAGE NOTE, MORTGAGE OR OTHER MORTGAGE LOAN DOCUMENT. IN
ADDITION, THE REFERENCES HEREIN TO SECURITIES, INSTRUMENTS AND OTHER OBLIGATIONS
SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY SUCH SECURITY, INSTRUMENT OR
OTHER OBLIGATION IS NOT AN INSTRUMENT, A CERTIFICATED SECURITY OR AN
UNCERTIFICATED SECURITY WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN
EFFECT IN ANY APPLICABLE JURISDICTION, NOR SHOULD THIS FINANCING STATEMENT BE
J-3
CONSTRUED AS A CONCLUSION THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR
SECURITY INTEREST OF THE SECURED PARTY IN THE CONTRACTUAL RIGHT TO PAYMENT,
INCLUDING, WITHOUT LIMITATION, THE RIGHT TO PAYMENTS OF PRINCIPAL AND INTEREST
AND THE RIGHT TO ENFORCE THE RELATED PAYMENT OBLIGATIONS, ARISING FROM OR UNDER
ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION. WITH RESPECT TO THE
FOREGOING, THIS FILING IS MADE ONLY IN THE EVENT OF CONTRARY ASSERTIONS BY THIRD
PARTIES.
J-4
EXHIBIT A TO SCHEDULE 1
(See Schedule I- Trust Mortgage Loan Schedule)
J-5
EXHIBIT K
SUB-SERVICERS IN RESPECT OF WHICH SUB-SERVICING AGREEMENTS ARE IN
EFFECT OR BEING NEGOTIATED AS OF THE CLOSING DATE
X.X. Melody & Company of Texas, XX
Xxxxxxx Capital Group
Bonneville Mortgage Company
Laureate Capital, LLC
GMAC Commercial Mortgage Corporation
Xxxxxxxxx Mortgage Corporation
NorthMarq Capital, Inc.
K-1
EXHIBIT L-1
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION
FOR WEBSITE ACCESS FROM CERTIFICATE [HOLDER] [OWNER]
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - LB-UBS Commercial Mortgage Trust 2004-C2
[Midland Loan Services, Inc.
00000 Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000]
Attention: LB-UBS Commercial Mortgage Trust 2004-C2]
Re: LB-UBS Commercial Mortgage Trust 2004-C2,
Commercial Mortgage Pass-Through Certificates, Series 2004-C2
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of March 11, 2004(the "Pooling and Servicing Agreement"),
between Structured Asset Securities Corporation II, as depositor (the
"Depositor"), Midland Loan Services, Inc., as master servicer, Midland Loan
Services, Inc., as special servicer and Xxxxx Fargo Bank, N.A., as trustee (the
"Trustee"), with respect to LB-UBS Commercial Mortgage Trust 2004-C2, Commercial
Mortgage Pass-Through Certificates, Series 2004-C2 (the "Certificates"), the
undersigned hereby certifies and agrees as follows:
1. The undersigned is a [beneficial owner] [registered holder] of the
Class _____ Certificates.
2. The undersigned is requesting (Please check as applicable):
(i) ____ the information (the "Information") identified on the
schedule attached hereto pursuant to Section 8.14 of the Pooling and
Servicing Agreement; or
(ii) ____ a password [and username] pursuant to Section 4.02 of
the Pooling and Servicing Agreement for access to information (also,
the "Information") provided on the [Trustee's] [Master Servicer's]
Internet Website.
L-1-1
3. In connection with accessing the website of the [Master Servicer]
[Trustee], the undersigned hereby agrees to register, execute or accept an
access agreement and accept a disclaimer, as and to the extent required by the
[Master Servicer] or [Trustee] in accordance with Section 4.02 of the Pooling
and Servicing Agreement.
4. In consideration of the [Trustee's] [Master Servicer'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
its interest in Certificates, from its accountants and attorneys, and otherwise
from such governmental or banking authorities to which the undersigned is
subject), and such Information will not, without the prior written consent of
the [Trustee] [Master Servicer], be disclosed by the undersigned or by its
officers, directors, partners, employees, agents or representatives
(collectively, the "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 holds or is contemplating the
purchase of any Certificate or interest therein, but only if such person or
entity confirms in writing such ownership interest or prospective ownership
interest and agrees to keep it confidential.
5. 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 Non-Registered
Certificate pursuant to Section 5 of the Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[BENEFICIAL OWNER OF A CERTIFICATE]
[REGISTERED HOLDER OF A CERTIFICATE]
By:
------------------------------------
Name:
Title:
----------------------------------------
By:
------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION FOR WEBSITE
ACCESS FROM PROSPECTIVE INVESTOR
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - LB-UBS Commercial Mortgage Trust 2004-C2
[Midland Loan Services, Inc.
00000 Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: LB-UBS Commercial Mortgage Trust 2004-C2]
Re: LB-UBS Commercial Mortgage Trust 2004-C2,
Commercial Mortgage Pass-Through Certificates, Series 2004-C2
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of March 11, 2004(the "Pooling and Servicing Agreement"),
between Structured Asset Securities Corporation II, as depositor (the
"Depositor"), Midland Loan Services, Inc., as master servicer, Midland Loan
Services, Inc., as special servicer, Xxxxx Fargo Bank, N.A., as trustee (the
"Trustee") with respect to LB-UBS Commercial Mortgage Trust 2004-C2, Commercial
Mortgage Pass-Through Certificates, Series 2004-C2 (the "Certificates"), the
undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class _____
Certificates.
2. The undersigned is requesting (please check as applicable):
(i) ____ information (the "Information") for use in evaluating
the possible investment described above as identified on the schedule
attached hereto pursuant to Section 8.14 of the Pooling and Servicing
Agreement; or
(ii) ____ a password [and username] pursuant to Section 4.02 of
the Pooling and Servicing Agreement for access to information (also,
the "Information") provided on the [Trustee's] [Master Servicer's]
Internet Website.
3. In connection with accessing the website of the [Master Servicer]
[Trustee], the undersigned hereby agrees to register, execute or accept an
access agreement and accept a disclaimer, as and to the extent required by the
[Master Servicer] or [Trustee] in accordance with Section 4.02 of the Pooling
and Servicing Agreement.
4. In consideration of the [Trustee's] [Master Servicer's] disclosure
to the undersigned of the Information, the undersigned will keep the Information
confidential (except from
L-2-1
such outside persons as are assisting it in making the investment decision
described in paragraph 1 above, from its accountants and attorneys, and
otherwise from such governmental or banking authorities and agencies to which
the undersigned is subject), and such Information will not, without the prior
written consent of the [Trustee] [Master Servicer], be disclosed by the
undersigned or by its officers, directors, partners, employees, agents or
representatives (collectively, the "Representatives") in any manner whatsoever,
in whole or in part.
5. 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 Non-Registered
Certificate pursuant to Section 5 of the Securities Act.
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.
[PROSPECTIVE PURCHASER OF A CERTIFICATE
OR INTEREST THEREIN]
By:
------------------------------------
Name:
Title:
----------------------------------------
By:
------------------------------------
Name:
Title:
L-2-2
EXHIBIT M
FORM OF DEFEASANCE CERTIFICATION
M-1
FORM OF NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For Mortgage Loans: (a) having an unpaid balance of $20,000,000 or less, (b)
that constitute less than 5%of the aggregate unpaid principal balance of the
Mortgage Pool, or (c) that are not then one of the ten largest (measured by
unpaid principal balance) Mortgage Loans in the Mortgage Pool
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: _____________________________________, in its capacity as master servicer
(the "Master Servicer") under the Pooling and Servicing Agreement dated as
of March 11, 2004(the "Pooling and Servicing Agreement"), between
Structured Asset Securities Corporation II, as Depositor, the Master
Servicer, Midland Loan Services, Inc., as special servicer, Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee").
Date: , 20
--------- --
Re: LB-UBS Commercial Mortgage Trust 2004-C2,
Commercial Mortgage Pass-Through Certificates, Series 2004-C2
Mortgage loan (the "Mortgage Loan") identified by loan number _____ on
the Trust Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and heretofore secured by the Mortgaged [Property]
[Properties] identified on the Trust Mortgage Loan Schedule by the
following name[s]: ___________________________________________________
______________________________________________________________________
Reference is made to the Pooling and Servicing Agreement described above.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we hereby:
1. Notify you that the Mortgagor has consummated a defeasance of the
Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type checked
below:
_____ a full defeasance of the payments scheduled to be due in
respect of the entire unpaid principal balance of the
Mortgage Loan; or
_____ a partial defeasance of the payments scheduled to be due in
respect of a portion of the unpaid principal balance of the
Mortgage Loan that represents ___% of
M-2
the entire unpaid principal balance of the Mortgage Loan and,
under the Mortgage, has an allocated loan amount of $____________
or _______% of the entire unpaid principal balance;
2. Certify as to each of the following, and any additional explanatory
notes set forth on Exhibit A hereto:
a. The Mortgage Loan documents permit the defeasance, and the
terms and conditions for defeasance specified therein were satisfied in all
material respects in completing the defeasance.
b. The defeasance was consummated on __________, 20__.
c. The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80a-1), (ii) are
listed as "Qualified Investments for 'AAA' Financings" under Paragraphs 1,
2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance Criteria
2000, as amended to the date of the defeasance, (iii) are rated 'AAA' by
Standard & Poor's, (iv) if they include a principal obligation, provide for
a predetermined fixed dollar amount of principal due at maturity that
cannot vary or change, and (v) are not subject to prepayment, call or early
redemption. Such securities have the characteristics set forth below:
CUSIP RATE MAT PAY DATES ISSUED
----- ---- --- --------- ------
d. The Master Servicer received an opinion of counsel (from
counsel approved by Master Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an Adverse REMIC Event.
e. The Master Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") as to which one of
the statements checked below is true:
_____ the related Mortgagor was a Single-Purpose Entity (as
defined in Standard & Poor's Structured Finance Ratings Real
Estate Finance Criteria, as amended to the date of the
defeasance (the "S&P Criteria")) as of the date of the
defeasance, and after the defeasance owns no assets other
than the defeasance collateral and real property securing
Mortgage Loan included in the pool.
_____ the related Mortgagor designated a Single-Purpose Entity
(as defined in the S&P Criteria) to own the defeasance
collateral; or
_____ the Master Servicer designated a Single-Purpose Entity (as
defined in the S&P Criteria) established for the benefit of
the Trust to own the defeasance collateral.
f. The Master Servicer received a broker or similar confirmation
of the credit, or the accountant's letter described below contained
statements that it reviewed a broker or similar confirmation of the credit,
of the defeasance collateral to an Eligible Account (as
M-3
defined in the S&P Criteria) in the name of the Defeasance Obligor, which
account is maintained as a securities account by the Trustee acting as a
securities intermediary.
g. As securities intermediary, the Trustee is obligated 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").
h. The Master Servicer received from the Mortgagor 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 principal and interest payments
made on the defeasance collateral (without taking into account any earnings
on reinvestment of such revenues) will be sufficient to timely pay each of
the Scheduled Payments after the defeasance including the payment in full
of the Mortgage Loan (or the allocated portion thereof in connection with a
partial defeasance) on its Maturity Date (or, in the case of an ARD
Mortgage Loan, on its Anticipated Repayment Date or on the date when any
open prepayment period set forth in the related Mortgage Loan documents
commences), (ii) the revenues received in any month from the defeasance
collateral will be applied to make Scheduled Payments within four (4)
months after the date of receipt, and (iii) interest income from the
defeasance collateral to the Defeasance Obligor in any calendar or fiscal
year will not exceed such Defeasance Obligor's interest expense for the
Mortgage Loan (or the allocated portion thereof in a partial defeasance)
for such year.
i. The Master Servicer received opinions from counsel, who were
approved by the Master Servicer in accordance with the Servicing Standard,
that (i) the agreements executed by the Mortgagor and/or the Defeasance
Obligor in connection with the defeasance are enforceable against them in
accordance with their terms, and (ii) the Trustee will have a perfected,
first priority security interest in the defeasance collateral described
above.
j. The agreements executed in connection with the defeasance (i)
permit reinvestment of proceeds of the defeasance collateral only in
Permitted Investments (as defined in the S&P Criteria), (ii) permit release
of surplus defeasance collateral and earnings on reinvestment to the
Defeasance Obligor or the Mortgagor only after the Mortgage Loan has been
paid in full, if any such release is permitted, (iii) prohibit any
subordinate liens against the defeasance collateral, and (iv) provide for
payment from sources other than the defeasance collateral or other assets
of the Defeasance Obligor of all fees and expenses of the securities
intermediary for administering the defeasance and the securities account
and all fees and expenses of maintaining the existence of the Defeasance
Obligor.
k. The entire unpaid principal balance of the Mortgage Loan as of
the date of defeasance was $___________. Such Mortgage Loan (a) has an
unpaid balance of $20,000,000 or less, (b) constitutes less than 5% of the
aggregate unpaid principal balance of the Mortgage Pool, or (b) is not one
of the ten largest (measured by unpaid principal balance) Mortgage Loans in
the Mortgage Pool, in each such case, as of the date of the most recent
Distribution Date Statement received by us (the "Current Report").
M-4
3. 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 unpaid principal balance of the Mortgage Pool as of the date of the
Current Report.
4. Certify that Exhibit B hereto is a list of the material agreements,
instruments, organizational documents for the Defeasance Obligor, and opinions
of counsel and independent accountants executed and delivered in connection with
the defeasance described above and that originals or copies of such agreements,
instruments and opinions have been transmitted to the Trustee for placement in
the related Mortgage File or, to the extent not required to be part of the
related Mortgage File, are in the possession of the Master Servicer as part of
the Master Servicer's servicing file.
5. Certify and confirm that the determinations and certifications
described above were rendered in accordance with the Servicing Standard set
forth in, and the other applicable terms and conditions of, the Pooling and
Servicing Agreement; and
6. 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.
7. 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.
[MASTER SERVICER]
By:
------------------------------------
Name:
Title:
M-5
EXHIBIT N
FORM OF SELLER/DEPOSITOR NOTIFICATION
[Date]
[Structured Asset Securities Corporation II [Midland Loan Services, Inc.
000 Xxxxxxx Xxxxxx 10851 Xxxxxx
New York, New York 10019 Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Xxxxx Xxxx] Attention: LB-UBS Commercial
Mortgage Trust 2004-C2
[UBS Securities LLC Xxxxx Fargo Bank, N.A.
1285 Avenue of the Americas 0000 Xxx Xxxxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx Attention: Corporate Trust
Xxxxxx Xxxxxxxxx] Services - LB-UBS Commercial
Mortgage Trust 2004-C2
[Controlling Class Representative (if known)]
Re: LB-UBS Commercial Mortgage Trust 2004-C2,
Commercial Mortgage Pass-Through Certificates, Series 2004-C2
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 2.03 of the Pooling
and Servicing Agreement, dated as of March 11, 2004(the "Agreement"), relating
to the captioned commercial mortgage pass-through certificates (the
"Certificates"). Capitalized terms used but not otherwise defined herein shall
have the respective meanings assigned to them in the Agreement.
This notice is being delivered with respect to the Mortgage Loan
identified on the Trust Mortgage Loan Schedule as Mortgage Loan number [__], and
secured by the Mortgaged Property identified on the Trust Mortgage Loan Schedule
as _________________ (the "Subject Trust Mortgage Loan").
Check which of the following applies:
_____ We hereby advise you that a Material Document Defect or
Material Breach exists with respect to the Subject Trust
Mortgage Loan due to the occurrence set forth on Schedule 1
attached hereto.
_____ We hereby request that you cure the Material Document Defect
or Material Breach with respect to the Subject Trust
Mortgage Loan within the time period and subject to the
conditions provided for in [Section 2.03(a) of the
Agreement] [Section 5(a) of the UBS/Depositor Mortgage Loan
Purchase Agreement].
N-1
_____ We hereby advise you that a Servicing Transfer Event has
occurred with respect to the Subject Trust Mortgage Loan due
to the occurrence set forth on Schedule 1 attached hereto
(and a Material Document Defect has occurred as set forth
above or on a previous Seller/Depositor Notification).
_____ We hereby advise you that an assumption is proposed or has
occurred with respect to the Subject Trust Mortgage Loan, as
further described on Schedule 1 attached hereto (and a
Material Document Defect has occurred as set forth above or
on a previous Seller/Depositor Notification).
_____ Under the circumstances contemplated by the last paragraph
of [Section 2.03(a) of the Agreement] [Section 5(a) of the
UBS/Depositor Mortgage Loan Purchase Agreement], we hereby
advise you that both (A) the applicable Resolution Extension
Period has expired and (B) a [Servicing Transfer Event]
[proposed or actual assumption] has occurred with respect to
the Subject Trust Mortgage Loan; therefore, we hereby direct
you to cure the subject Material Document Defect within 15
days of receipt of this Seller/Depositor Notification.
_____ We hereby advise you that the 15-day period set forth in the
preceding paragraph has expired and we hereby notify you
that the [Master Servicer] [Special Servicer] has elected to
perform your cure obligations with respect to the subject
Material Document Defect and the Subject Trust Mortgage
Loan.
N-2
_____ We hereby request that you repurchase the Subject Trust
Mortgage Loan or any related REO Property to the extent
required by [Section 2.03(a) of the Agreement] [Section 5(a)
of the UBS/Depositor Mortgage Loan Purchase Agreement].
Very truly yours,
[XXXXX FARGO BANK, N.A.,
as Trustee
By:
------------------------------------
Name:
Title:]
[MIDLAND LOAN SERVICES, INC.,
as Master Servicer
By:
------------------------------------
Name:
Title:]
[MIDLAND LOAN SERVICES, INC.,
as Special Servicer
By:
------------------------------------
Name:
Title:]
In the event this notice constitutes a request to repurchase the
Subject Trust Mortgage Loan, a copy of this Seller/Depositor Notification has
been delivered to each of:
(i) Counsel to the Seller:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx;
N-3
and
(ii) Internal Counsel to the Depositor/Lehman Mortgage Loan Seller:
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
N-4
Schedule 1
Mortgage Loan Number: ________________
Name of Mortgaged Property: _______________________________________________
Material Breach: Explain the nature of the Material Breach: ______________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Material Document Defect: List the affected documents and describe nature
of the Material Document Defect: _______________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Servicing Transfer Event/Assumption: Explain the nature of the Servicing
Transfer Event/Assumption: _____________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Other: Set forth any necessary additional information: ____________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
N-5
EXHIBIT O
FORM OF CONTROLLING CLASS REPRESENTATIVE CONFIDENTIALITY
AGREEMENT
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services - LB-UBS Commercial Mortgage Trust 2004-C2
[Midland Loan Services, Inc.
00000 Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: LB-UBS Commercial Mortgage Trust 2004-C2]
Re: LB-UBS Commercial Mortgage Trust 2004-C2,
Commercial Mortgage Pass-Through Certificates, Series 2004-C2
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of March 11, 2004(the "Pooling and Servicing Agreement"),
between Structured Asset Securities Corporation II, as depositor (the
"Depositor"), Midland Loan Services, Inc., as master servicer, Midland Loan
Services, Inc., as special servicer and Xxxxx Fargo Bank, N.A., as trustee (the
"Trustee"), with respect to LB-UBS Commercial Mortgage Trust 2004-C2, Commercial
Mortgage Pass-Through Certificates, Series 2004-C2 (the "Certificates"), the
undersigned hereby certifies and agrees as follows:
1. The undersigned is the Controlling Class Representative.
2. The undersigned will keep the information (the "Information")
obtained from time to time pursuant to the Pooling and Servicing Agreement
confidential (except for Information with respect to tax treatment or tax
structure), and such Information will not, without the prior written consent of
the [Trustee] [Master Servicer], be disclosed by the undersigned or by its
officers, directors, partners, employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in whole or in
part (other than for the purpose of communicating with the Controlling Class);
provided that the undersigned may provide all or any part of the Information to
any other person or entity that holds or is contemplating the purchase of any
Certificate or interest therein, but only if such person or entity confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep it confidential.
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 Non-Registered
Certificate pursuant to Section 5 of the Securities Act.
O-1
To the extent not defined herein, the capitalized terms used herein
have the respective meanings assigned in the Pooling and Servicing 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.
[CONTROLLING CLASS REPRESENTATIVE]
By:
------------------------------------
Name:
Title:
----------------------------------------
By:
------------------------------------
Name:
Title:
O-2
EXHIBIT P
FORM OF TRUSTEE BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: LB-UBS Commercial Mortgage Trust 2004-C2 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2004-C2 (the
"Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement, dated
as of March 11, 2004(the "Pooling and Servicing Agreement"), between Structured
Asset Securities Corporation II as depositor (the "Depositor"), Xxxxx Fargo
Bank, N.A. as trustee (the "Trustee"), Midland Loan Services, Inc. as master
servicer (the "Master Servicer") and Midland Loan Services, Inc. as special
servicer (the "Special Servicer"), relating to the Certificates, the
undersigned, a ____________________ of the Trustee and on behalf of the Trustee,
hereby certifies to ___________________ (the "Certifying Party") and to
____________________ as the officer executing the subject certification pursuant
to the Xxxxxxxx-Xxxxx Act of 2002 (the "Certifying Officer") and its partners,
representatives, affiliates, members, managers, directors, officers, employees
and agents, to the extent that the following information is within our normal
area of responsibilities and duties under the Pooling and Servicing Agreement,
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 _______, and all reports on Form 8-K filed in respect of periods
included in the year covered by that annual report, of the Trust;
2. To the best of my knowledge, and assuming the accuracy of the
statements required to be made in the Master Servicer Backup Certification
and in the Special Servicer Backup Certification (in each case, to the
extent that such statements are relevant to the statements made in this
Trustee Backup Certification), that the information in such reports
relating to distributions on and/or characteristics (including Certificate
Principal Balances, Certificate Notional Amounts and Pass-Through Rates) of
the Certificates, taken as a whole, does not contain any untrue statement
of material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading as of the last day of the period covered by the
subject Annual Report on Form 10-K;
3. To the best of my knowledge, the information in such reports
relating to distributions on and/or characteristics (including Certificate
Principal Balances, Certificate Notional Amounts and Pass-Through Rates) of
the Certificates includes all information of such type required to be
included in the Distribution Date Statement for the relevant period covered
by the subject Annual Report on Form 10-K; and
4. To the best of my knowledge, such information includes all
Servicer Reports and Additional Designated Servicing Information provided
to the Trustee by the Master Servicer and/or the Special Servicer
hereunder.
P-1
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
[NAME OF TRUSTEE]
By:
------------------------------------
Name:
Title:
P-2
EXHIBIT Q
FORM OF MASTER SERVICER BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: LB-UBS Commercial Mortgage Trust 2004-C2 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2004-C2 (the
"Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement, dated
as of March 11, 2004 (the "Pooling and Servicing Agreement"), between Structured
Asset Securities Corporation II as depositor (the "Depositor"), Xxxxx Fargo
Bank, N.A. as trustee (the "Trustee"), Midland Loan Services, Inc. as master
servicer (the "Master Servicer") and Midland Loan Services, Inc. as special
servicer (the "Special Servicer"), relating to the Certificates, the
undersigned, a ____________________ of the Master Servicer and on behalf of the
Master Servicer (in such capacity), hereby certifies to ___________________ (the
"Certifying Party") and to ____________________ as the officer executing the
subject certification pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the
"Certifying Officer") and its partners, representatives, affiliates, members,
managers, directors, officers, employees and agents, to the extent that the
following information is within our normal area of responsibilities and duties
under the Pooling and Servicing Agreement, and with the knowledge and intent
that they will rely upon this certification, that:
1. I have reviewed all the Servicer Reports and Additional
Designated Servicing Information delivered by the Master Servicer to the
Trustee for the fiscal year __________;
2. Based on my knowledge, and assuming the accuracy of the
statements required to be made in the Special Servicer Certification (to
the extent that such statements are relevant to the statements made in this
Master Servicer Certification), the information in the Servicer Reports and
Additional Designated Servicing Information delivered by the Master
Servicer to the Trustee for such year relating to servicing information,
including information relating to actions of the Master Servicer and/or
payments and other collections on and characteristics of the Trust Mortgage
Loans and REO Properties, taken as a whole, does not contain any untrue
statement of 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 such fiscal
year;
3. Based on my knowledge, and assuming the accuracy of the
statements required to be made in the Special Servicer Certification (to
the extent that such statements are relevant to the statements made in this
Master Servicer Certification), the information in the Servicer Reports and
Additional Designated Servicing Information delivered by the Master
Servicer to the Trustee for such year relating to servicing information,
including information relating to actions of the Master Servicer and/or
payments and other collections on and characteristics of the Trust Mortgage
Loans and REO Properties, includes all information of such type required to
be provided by the Master Servicer to the Trustee under the Pooling and
Servicing Agreement for such year;
Q-1
4. I am responsible for reviewing the activities performed by the
Master Servicer under the Pooling and Servicing Agreement and, based upon
the review required under the Pooling and Servicing Agreement, and except
as disclosed in the Annual Performance Certification delivered by the
Master Servicer for such year, the Master Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement; and
5. I have disclosed to the accountants that are to deliver the
Annual Accountants' Report in respect of the Master Servicer with respect
to such year all significant deficiencies relating to the Master Servicer's
compliance 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.
The foregoing certifications under clauses 2. and 3. above assume that
the following sections and parts of the Prospectus Supplement did not, as of the
date thereof or as of the Closing Date, contain any untrue statement of a
material fact regarding the Mortgage Loan Seller Matters (as defined below) or
omit to state any material fact regarding the Mortgage Loan Seller Matters
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading: "Summary of Prospectus
Supplement--The Underlying Mortgage Loans and the Mortgaged Real Properties",
"Risk Factors--Risks Related to the Underlying Mortgage Loans" and "Description
of the Mortgage Pool" and Annex X-0, Xxxxx X-0, Xxxxx X-0, Annex X-0, Xxxxx X-0,
Xxxxx X-0 and Annex B to the Prospectus Supplement. "Mortgage Loan Seller
Matters" as used in the preceding sentence shall mean the description of the
Mortgage Loans, the Mortgaged Properties and the Mortgagors. In addition,
notwithstanding the foregoing certifications under clauses 2. and 3. above, the
Master Servicer does not make any certification under such clauses 2. and 3.
above with respect to the information in the Servicer Reports and Additional
Designated Servicing Information delivered by the Master Servicer to the Trustee
referred to in such clauses 2. and 3. above that is in turn dependent upon
information provided by (a) the Special Servicer under the Pooling and Servicing
Agreement, beyond the corresponding certification actually provided by the
Special Servicer, and/or (b) a GIC Office Servicer pursuant to the GIC Office
Servicing Agreement, beyond the corresponding certification actually provided by
such GIC Office Servicer, in each case if and as applicable. Further,
notwithstanding the foregoing certifications, the Master Servicer does not make
any certification under the foregoing clauses 1. through 5. that is in turn
dependent upon information required to be provided by any Sub-Servicer
identified on Exhibit K to the Pooling and Servicing Agreement, acting under a
Sub-Servicing Agreement that the Master Servicer entered into in connection with
the issuance of the Certificates, or upon the performance by any such
Sub-Servicer of its obligations pursuant to any such Sub-Servicing Agreement, in
each case beyond the respective backup certifications actually provided by such
Sub-Servicer to the Master Servicer with respect to the information that is the
subject of such certification.
Q-2
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
[NAME OF MASTER SERVICER]
By:
------------------------------------
Name:
Title:
Q-3
EXHIBIT R
FORM OF SPECIAL SERVICER BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: LB-UBS Commercial Mortgage Trust 2004-C2 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2004-C2 (the
"Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement, dated
as of March 11, 2004(the "Pooling and Servicing Agreement"), between Structured
Asset Securities Corporation II as depositor (the "Depositor"), Xxxxx Fargo
Bank, N.A. as trustee (the "Trustee"), Midland Loan Services, Inc. as master
servicer (the "Master Servicer") and Midland Loan Services, Inc. as special
servicer (the "Special Servicer"), relating to the Certificates, the
undersigned, a ____________________ of the Special Servicer and on behalf of the
Special Servicer, hereby certifies to ___________________ (the "Certifying
Party") and to ____________________ as the officer executing the subject
certification pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the "Certifying
Officer") and its partners, representatives, affiliates, members, managers,
directors, officers, employees and agents, to the extent that the following
information is within our normal area of responsibilities and duties under the
Pooling and Servicing Agreement, and with the knowledge and intent that they
will rely upon this certification, that:
1. I have reviewed all the Servicer Reports and Additional Designated
Servicing Information delivered by the Special Servicer delivered to the Master
Servicer and/or the Trustee for the fiscal year ______________ as to the special
servicing by the Special Servicer of specially serviced mortgage loans (the
"Specially Serviced Mortgage Loans") or real properties owned by the Trust that
were acquired through foreclosure of loans as to which the Special Servicer has
servicing responsibilities ("REO Properties");
2. To the best of my knowledge, the information in the Servicer
Reports and Additional Designated Servicing Information delivered to the Master
Servicer and/or the Trustee for such year relating to servicing information in
respect of Specially Serviced Mortgage Loans and REO Properties, in each case,
including information relating to actions of the Special Servicer and/or
payments and other collections on and characteristics of the Specially Serviced
Mortgage Loans and the REO Properties, 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 such fiscal year;
3. To the best of my knowledge, the information in the Servicer
Reports and Additional Designated Servicing Information delivered to the Master
Servicer and/or the Trustee for such year relating to servicing information in
respect of Specially Serviced Mortgage Loans and REO Properties, in each case,
including information relating to actions of the Special Servicer and/or
payments and other collections on and characteristics of the Specially Serviced
Mortgage Loans and the REO Properties, includes all information of such type
required to be provided by the Special Servicer to the Trustee and the Master
Servicer under the Pooling and Servicing Agreement;
4. I am responsible for reviewing the activities performed by the
Special Servicer under the Pooling and Servicing Agreement, and based upon the
review required by the Pooling and
R-1
Servicing Agreement, and except as disclosed in the Annual Performance
Certification delivered by the Special Servicer for such year, the Special
Servicer has fulfilled its obligations under the Pooling and Servicing
Agreement; and
5. I have disclosed to the certified public accountants that are to
deliver the Annual Accountants Report in respect of the Special Servicer
required by the Pooling and Servicing Agreement with respect to such year all
significant deficiencies (of which I have knowledge after due inquiry) relating
to the Special Servicer's compliance with the minimum servicing standards in
order to enable them to conduct a review in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar standard as set forth in the
Pooling and Servicing Agreement.
The statements in this Certificate are limited to information
regarding the Special Servicer and the Special Servicer's activities under the
Pooling and Servicing Agreement. This Certification does not relate to
information in the Servicer Reports and Additional Designated Servicing
Information relating to any other person or any other topic.
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
[NAME OF SPECIAL SERVICER]
By:
------------------------------------
Name:
Title:
R-2
