EXECUTION COPY
STRUCTURED ASSET SECURITIES CORPORATION II,
as Depositor
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Master Servicer
and
LENNAR PARTNERS, INC.,
as Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
and
ABN AMRO BANK N.V.,
as Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of November 11, 2003
----------
$1,399,717,369
LB-UBS Commercial Mortgage Trust 2003-C8
Commercial Mortgage Pass-Through Certificates,
Series 2003-C8
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN ADJUSTMENTS TO THE
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES
SECTION 1.01. Defined Terms....................................................................7
SECTION 1.02. General Interpretive Principles.................................................83
SECTION 1.03. Certain Adjustments to the Principal Distributions on the Certificates..........84
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...........................86
SECTION 2.02. Acceptance of Trust Fund by Trustee.............................................88
SECTION 2.03. Repurchase of Trust Mortgage Loans for Document Defects and Breaches
of Representations and Warranties............................................90
SECTION 2.04. Representations, Warranties and Covenants of the Depositor......................94
SECTION 2.05. Acceptance of Grantor Trust Assets by Trustee; Issuance of the Class V
Certificates................................................................111
SECTION 2.06. Acceptance of the Sangertown Square Loan REMIC by Trustee; Execution,
Authentication and Delivery of Class R-LR Certificates; Creation of Loan
REMIC Regular Interests.....................................................111
SECTION 2.07. Conveyance of Loan REMIC Regular Interests.....................................112
SECTION 2.08. Execution, Authentication and Delivery of Class R-I Certificates; Creation
of REMIC I Regular Interests................................................112
SECTION 2.09. Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by Trustee.....112
SECTION 2.10. Execution, Authentication and Delivery of Class R-II Certificates; Creation
of REMIC II Regular Interests...............................................112
SECTION 2.11. Conveyance of REMIC II Regular Interests; Acceptance of REMIC III by
Trustee.....................................................................113
SECTION 2.12. Execution, Authentication and Delivery of REMIC III Certificates...............113
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans...........................................114
SECTION 3.02. Collection of Mortgage Loan Payments...........................................116
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SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts;
Reserve Accounts............................................................119
SECTION 3.04. Pool Custodial Account, Defeasance Deposit Account, Collection Account,
Interest Reserve Account and Excess Liquidation Proceeds Account............121
SECTION 3.04A. XX Xxxx Custodial Account......................................................125
SECTION 3.05. Permitted Withdrawals From the Pool Custodial Account, the Collection
Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account............................................................128
SECTION 3.05A. Permitted Withdrawals From the XX Xxxx Custodial Account.......................134
SECTION 3.06. Investment of Funds in the Servicing Accounts, the Reserve Accounts, the
Defeasance Deposit Account, the Custodial Accounts and
the REO Accounts............................................................139
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity
Coverage; Environmental Insurance...........................................141
SECTION 3.08. Enforcement of Alienation Clauses..............................................145
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required Appraisals;
Appraisal Reduction Calculation.............................................148
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage Files..................152
SECTION 3.11. Servicing Compensation; Payment of Expenses; Certain Matters Regarding
Servicing Advances..........................................................154
SECTION 3.12. Property Inspections; Collection of Financial Statements; Delivery of
Certain Reports.............................................................160
SECTION 3.12A. Delivery of Certain Reports to the XX Xxxx Non-Trust Mortgage Loan
Noteholders.................................................................163
SECTION 3.12B. Statements to the XX Xxxx Non-Trust Mortgage Loan Noteholders..................164
SECTION 3.13. Annual Statement as to Compliance..............................................165
SECTION 3.14. Reports by Independent Public Accountants......................................166
SECTION 3.15. Access to Certain Information..................................................166
SECTION 3.16. Title to REO Property; REO Accounts............................................167
SECTION 3.17. Management of REO Property.....................................................169
SECTION 3.18. Sale of Trust Mortgage Loans and REO Properties................................172
SECTION 3.19. Additional Obligations of the Master Servicer; Obligations to Notify Ground
Lessors; the Special Servicer's Right to Request the Master Servicer to
Make Servicing Advances.....................................................176
SECTION 3.20. Modifications, Waivers, Amendments and Consents; Defeasance....................177
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special Servicer;
Record Keeping..............................................................183
SECTION 3.22. Sub-Servicing Agreements.......................................................185
SECTION 3.23. Representations and Warranties of the Master Servicer..........................187
SECTION 3.24. Representations and Warranties of the Special Servicer.........................189
SECTION 3.25. Certain Matters Regarding the Purchase of the XX Xxxx Trust Mortgage
Loan and the Sangertown Square Trust Mortgage Loan..........................190
SECTION 3.26. Application of Default Charges.................................................191
SECTION 3.27. Sangertown Square Purchase Option..............................................193
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions..................................................................195
SECTION 4.02. Statements to Certificateholders; CMSA Loan Periodic Update File...............211
SECTION 4.03. P&I Advances With Respect to the Mortgage Pool.................................218
SECTION 4.04. Unfunded Principal Balance Reductions..........................................221
SECTION 4.05. Various Reinstatement Amounts..................................................223
SECTION 4.06. Calculations...................................................................224
SECTION 4.07. Use of Agents..................................................................225
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates...............................................................226
SECTION 5.02. Registration of Transfer and Exchange of Certificates..........................226
SECTION 5.03. Book-Entry Certificates........................................................234
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates..............................235
SECTION 5.05. Persons Deemed Owners..........................................................236
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...................237
SECTION 6.02. Continued Qualification and Compliance of Master Servicer; Merger,
Consolidation or Conversion of Depositor, Master Servicer or Special
Servicer....................................................................237
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and Special Servicer.....237
SECTION 6.04. Resignation of Master Servicer and the Special Servicer........................239
SECTION 6.05. Rights of Depositor, Trustee and XX Xxxx Non-Trust Mortgage Loan Noteholders
in Respect of the Master Servicer and the Special Servicer..................240
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate with Trustee......240
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with Master Servicer......240
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with Special Servicer......241
SECTION 6.09. Designation of Special Servicer and Controlling Class Representative by the
Controlling Class...........................................................241
SECTION 6.10. Master Servicer or Special Servicer as Owner of a Certificate..................243
SECTION 6.11. Certain Powers of the Controlling Class Representative.........................243
SECTION 6.11A. Certain Powers of the XX Xxxx Non-Trust Mortgage Loan Noteholders..............247
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default and Sangertown Square Events of Default......................250
SECTION 7.02. Trustee to Act; Appointment of Successor.......................................257
SECTION 7.03. Notification to Certificateholders.............................................258
SECTION 7.04. Waiver of Events of Default and Sangertown Square Events of Default............259
SECTION 7.05. Additional Remedies of Trustee Upon an Event of Default or a Sangertown
Square Event of Default.....................................................259
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee..............................................................260
SECTION 8.02. Certain Matters Affecting Trustee..............................................261
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans..............................................262
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates..................................262
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of and by Trustee................263
SECTION 8.06. Eligibility Requirements for Trustee...........................................264
SECTION 8.07. Resignation and Removal of Trustee.............................................264
SECTION 8.08. Successor Trustee..............................................................265
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal Agent............................266
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee..................................266
SECTION 8.11. Appointment of Custodians......................................................267
SECTION 8.12. Appointment of Authenticating Agents...........................................268
SECTION 8.13. Appointment of Tax Administrators..............................................269
SECTION 8.14. Access to Certain Information..................................................269
SECTION 8.15. Reports to the Securities and Exchange Commission and Related Reports..........271
SECTION 8.16. Representations and Warranties of Trustee......................................276
SECTION 8.17. The Fiscal Agent...............................................................278
SECTION 8.18. Representations and Warranties of Fiscal Agent.................................279
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Trust Mortgage Loans.........281
SECTION 9.02. Additional Termination Requirements............................................288
SECTION 9.03. Sangertown Square Trust Mortgage Loan..........................................289
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration...........................................................290
SECTION 10.02. Grantor Trust Administration...................................................293
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment......................................................................295
SECTION 11.02. Recordation of Agreement; Counterparts.........................................297
SECTION 11.03. Limitation on Rights of Certificateholders and the XX Xxxx Non-Trust
Mortgage Loan Noteholders...................................................297
SECTION 11.04. Governing Law; Consent to Jurisdiction.........................................298
SECTION 11.05. Notices........................................................................298
SECTION 11.06. Severability of Provisions.....................................................299
SECTION 11.07. Grant of a Security Interest...................................................299
SECTION 11.08. Xxxxxx Act.....................................................................300
SECTION 11.09. Successors and Assigns; Beneficiaries..........................................300
SECTION 11.10. Article and Section Headings...................................................301
SECTION 11.11. Notices to Rating Agencies.....................................................301
SECTION 11.12. Complete Agreement.............................................................302
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SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
------------ --------------------
I Trust Mortgage Loan Schedule
II Schedule of Exceptions to Mortgage File Delivery
III Exceptions to the Representations and Warranties of the Depositor
IV Schedule of Environmentally Insured Mortgage Loans
V Reference Rate Schedule
Exhibit No. Exhibit Description
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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] Certificate
A-4 Form of Class [E] [F] [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T] Certificate
A-5 Form of Class [R-I] [R-II] [R-III] [R-LR] 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 November 11, 2003, among STRUCTURED ASSET SECURITIES CORPORATION
II, as Depositor, WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer,
LENNAR PARTNERS, INC., as Special Servicer, LASALLE BANK NATIONAL ASSOCIATION,
as Trustee, and ABN AMRO BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, which are to be issued
hereunder in multiple Classes and which in the aggregate will evidence the
entire beneficial ownership interest in the Trust Fund.
As provided herein, the Trustee will elect to treat the Sangertown
Square Trust Mortgage Loan (exclusive of any collections of Additional Interest
on such Trust Mortgage Loan after its Anticipated Repayment Date) as the primary
asset of a separate REMIC for federal income tax purposes, and such REMIC will
be designated as the "Sangertown Square Loan REMIC". The Class R-LR Certificates
will represent the sole class of "residual interests" in that Sangertown Square
Loan REMIC for purposes of the REMIC Provisions under federal income tax law.
Four separate Loan REMIC Regular Interests, constituting beneficial ownership
interests in the Sangertown Square Loan REMIC, will be issued on the Closing
Date, and such Loan REMIC Regular Interests shall be designated as "Loan REMIC
Regular Interest SS-1", "Loan REMIC Regular Interest SS-2", "Loan REMIC Regular
Interest SS-3" and "Loan REMIC Regular Interest SS-4", respectively. Each Loan
REMIC Regular Interest will relate to the Sangertown Square Trust Mortgage Loan
and any Sangertown Square REO Trust Mortgage Loan and, more specifically, will
relate to a particular Sangertown Square Loan Component. Each Loan REMIC Regular
Interest will (i) accrue interest at the related per annum rate described in the
definition of "Loan REMIC Remittance Rate" and (ii) have an initial
Uncertificated Principal Balance equal to: (A) $1,775,000 in the case of Loan
REMIC Regular Interest SS-1; (B) $5,925,000 in the case of Loan REMIC Regular
Interest SS-2; (C) $2,200,000 in the case of Loan REMIC Regular Interest SS-3;
and (D) $4,233,832 in the case of Loan REMIC Regular Interest SS-4. The Legal
Final Distribution Date of each Loan REMIC Regular Interest 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 Sangertown
Square Trust Mortgage Loan. None of the Loan REMIC Regular Interests will be
certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Serviced Trust Mortgage Loans (exclusive of any
collections of Additional Interest on any such Serviced Trust Mortgage Loans
that constitute ARD Trust Mortgage Loans after their respective Anticipated
Repayment Dates), the Loan REMIC Regular Interests and certain other related
assets subject to this Agreement as a REMIC for federal income tax purposes, and
such segregated pool of assets will be designated as "REMIC I". The Class R-I
Certificates will represent the sole class of "residual interests" in REMIC I
for purposes of the REMIC Provisions under federal income tax law. A separate
REMIC I Regular Interest will, on the Closing Date, be issued with respect to,
and will thereafter relate to, each Serviced Trust Mortgage Loan, and each such
REMIC I Regular Interest shall bear a numeric designation that is the same as
the loan number for the related Serviced Trust Mortgage Loan set forth on the
Trust Mortgage Loan Schedule. Each REMIC I Regular Interest issued with respect
to, and relating to, a Serviced Trust Mortgage Loan, shall also relate to any
successor REO Trust Mortgage Loan with respect to such Serviced Trust Mortgage
Loan. In addition, a single REMIC I Regular Interest will, on the Closing Date,
be issued with respect to, and will thereafter relate to, all four
Loan REMIC Regular Interests, and such REMIC I Regular Interest will be
designated "REMIC I Regular Interest SS". The REMIC I Regular Interest SS shall
also relate to the Sangertown Square Trust Mortgage Loan and any Sangertown
Square REO Trust Mortgage Loan. Each REMIC I Regular Interest will (i) accrue
interest at a per annum rate described in the definition of "REMIC I Remittance
Rate" and (ii) 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.
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REMIC II Initial Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- ----------------------
A-1-1 Variable (1) $ 90,514,000
A-1-2 Variable (1) $ 66,359,000
A-1-3 Variable (1) $ 50,127,000
A-2-1 Variable (1) $ 15,672,000
A-2-2 Variable (1) $264,328,000
A-3-1 Variable (1) $ 18,982,000
A-3-2 Variable (1) $ 68,647,000
A-3-3 Variable (1) $ 72,371,000
A-4-1 Variable (1) $ 26,069,000
A-4-2 Variable (1) $520,190,000
B Variable (1) $ 14,872,000
C Variable (1) $ 14,872,000
D-1 Variable (1) $ 16,930,000
D-2 Variable (1) $ 566,000
E Variable (1) $ 22,745,000
F Variable (1) $ 13,998,000
G-1 Variable (1) $ 5,541,000
G-2 Variable (1) $ 15,454,000
H Variable (1) $ 17,497,000
J Variable (1) $ 13,997,000
K Variable (1) $ 20,996,000
L Variable (1) $ 6,998,000
M Variable (1) $ 6,999,000
N Variable (1) $ 5,249,000
P Variable (1) $ 6,998,000
Q Variable (1) $ 3,500,000
S Variable (1) $ 3,499,000
T Variable (1) $ 15,747,369
----------
(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 28 REMIC III Components of
the Class X-CL Certificates and each of the 17 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
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(exclusive of the Class X-CL and Class X-CP Certificates), for each of the 28
REMIC III Components of the Class X-CL Certificates and for each of the 17 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 3.636% per annum $207,000,000
Class A-2 4.207% per annum $280,000,000
Class A-3 4.830% per annum $160,000,000
Class A-4 Variable (1) $546,259,000
Class B Variable (1) $ 14,872,000
Class C Variable (1) $ 14,872,000
Class D Variable (1) $ 17,496,000
Class E Variable (1) $ 22,745,000
Class F Variable (1) $ 13,998,000
Class G Variable (1) $ 20,995,000
Class H Variable (1) $ 17,497,000
Class J Variable (1) $ 13,997,000
Class K Variable (1) $ 20,996,000
Class L Variable (1) $ 6,998,000
Class M Variable (1) $ 6,999,000
Class N Variable (1) $ 5,249,000
Class P Variable (1) $ 6,998,000
Class Q Variable (1) $ 3,500,000
Class S Variable (1) $ 3,499,000
Class T Variable (1) $ 15,747,369
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 A-4, 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 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 the portion of the Trust Fund consisting of the Grantor Trust Assets
maintains its status as a Grantor Trust under the Code.
The Initial Pool Balance will be $1,399,717,369.
There exists a Trust Mortgage Loan (the "Sangertown Square Trust
Mortgage Loan"), with a Cut-off Date Balance of $14,133,832, that is part of a
loan pair comprised of the Sangertown Square Trust Mortgage Loan and another
mortgage loan that is not included in the Trust Fund (such other Mortgage Loan,
the "Sangertown Square Non-Trust Mortgage Loan"). The Sangertown Square Trust
Mortgage Loan and the Sangertown Square Non-Trust Mortgage Loan (together,
including any successor REO Mortgage Loans with respect thereto, the "Sangertown
Square Loan Pair") are together secured by the same Mortgage encumbering the
Mortgaged Property identified on the Trust Mortgage Loan Schedule as Sangertown
Square Mall (the "Sangertown Square Mortgaged Property"). The Sangertown Square
Non-Trust Mortgage Loan has a Cut-off Date Balance of $60,351,947 and is,
together with various other commercial and multifamily mortgage loans, included
in a commercial mortgage securitization (the "Series 2000-C3 Securitization")
involving the issuance of the LB-UBS Commercial Mortgage Trust 2000-C3,
Commercial Mortgage Pass-Through Certificates, Series 2000-C3 (the "Series
2000-C3 Certificates").
The Sangertown Square Trust Mortgage Loan consists of four separate
loan components (each, a "Sangertown Square Loan Component"). Each Loan REMIC
Regular Interest issued with respect to the Sangertown Square Trust Mortgage
Loan shall relate to a separate Sangertown Square Loan Component.
The relative rights of the respective holders of the Sangertown Square
Trust Mortgage Loan and the Sangertown Square Non-Trust Mortgage Loan are set
forth in a co-lender and servicing agreement dated as of May 15, 2000 (the
"Sangertown Square Co-Lender and Servicing Agreement"), between, among others,
the holder of the Mortgage Note for the Sangertown Square Trust Mortgage Loan
and the holder of the Mortgage Note for the Sangertown Square Non-Trust Mortgage
Loan. Pursuant to the Sangertown Square Co-Lender and Servicing Agreement, for
so long as the Sangertown Square Trust Mortgage Loan or any related REO Property
is part of the Series 2000-C3 Securitization, the entire Sangertown Square Loan
Pair or any related REO Property is to be serviced and administered in
accordance with the pooling and servicing agreement, dated as of May 11, 2000
(the "Series 2000-C3 Pooling and Servicing Agreement"), between Structured Asset
Securities Corporation as depositor, Wachovia (formerly known as First Union
National Bank) as master servicer, Lennar as special servicer, LaSalle as
trustee and ABN AMRO as fiscal agent. If neither the Sangertown Square Non-Trust
Mortgage Loan nor any related REO Property is part of the Series 2000-C3
Securitization, then the entire Sangertown Square Loan Pair or any related REO
Property is to be serviced and administered under the Sangertown Square
Co-Lender and Servicing Agreement.
There exist three other Trust Mortgage Loans (collectively, the "XX
Xxxx Trust Mortgage Loans") that are each part of a loan pair comprised of the
subject XX Xxxx Trust Mortgage Loan and another Mortgage Loan (such other
Mortgage Loan, a "XX Xxxx Non-Trust Mortgage Loan"). Each XX Xxxx Trust Mortgage
Loan and the corresponding XX Xxxx Non-Trust Mortgage Loan (together, including
any successor REO Trust Mortgage Loans with respect thereto, a "XX Xxxx Loan
Pair") are
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together secured by the same Mortgage encumbering one of the three Mortgaged
Properties identified on the Trust Mortgage Loan Schedule as Springhill Suites
by Marriott-Boca Raton, TownPlace Suites by Marriott-Boca Raton and TownPlace
Suites by Marriott-Fort Lauderdale, respectively (those three Mortgaged
Properties, the "XX Xxxx Mortgaged Properties"). The three XX Xxxx Trust
Mortgage Loans have Cut-off Date Balances of $4,567,095, $4,324,165 and
$4,008,355, respectively, and the three XX Xxxx Non-Trust Mortgage Loans have
Cut-off Date Balances of $1,360,412, $1,068,895 and $412,982, respectively. The
three XX Xxxx Loan Pairs are cross-collateralized and cross-defaulted. The three
XX Xxxx Non-Trust Mortgage Loans are held by LBHI as of the Closing Date.
The relative rights of the respective holders of the XX Xxxx Trust
Mortgage Loans and the XX Xxxx Non-Trust Mortgage Loans are set forth in a
co-lender agreement dated as of November 25, 2003 (the "XX Xxxx Co-Lender
Agreement"), among the respective holders of the XX Xxxx Trust Mortgage Loans
and the XX Xxxx Non-Trust Mortgage Loans. Pursuant to the XX Xxxx Co-Lender
Agreement, each of the XX Xxxx Loan Pairs is to be serviced and administered in
accordance with this Agreement, by the Trustee, the Master Servicer and the
Special Servicer hereunder.
Capitalized terms used but not otherwise defined in this Preliminary
Statement have the respective meanings assigned thereto in Section 1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent hereby agree, in each case, as follows:
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN ADJUSTMENTS TO THE PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, unless the context otherwise requires:
"114 Xxxx 00xx Xxxxxx Mortgage Loan" shall mean the Trust Mortgage
Loan identified on the Trust Mortgage Loan Schedule by mortgage loan number 2,
which Trust Mortgage Loan is secured by a Mortgage on the Mortgaged Property
identified on the Trust Mortgage Loan Schedule as 000 Xxxx 00xx Xxxxxx.
"30/360 Basis" shall mean the accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"ABN AMRO" shall mean ABN AMRO Bank N.V. or its successor in interest.
"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, 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 required in subclause (i) or (ii)
of this definition, the Special Servicer shall be entitled to rely on the
opinion of an insurance consultant.
"Accrued Certificate Interest" shall mean the interest accrued from
time to time with respect to any Class of Regular Interest Certificates, the
amount of which interest shall equal: (a) in the case of any Class of Principal
Balance Certificates for any Interest Accrual Period, one-twelfth of the product
of (i) the 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 any 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 a Class of Interest Only
Certificates, the amount of which interest shall equal, for any Interest Accrual
Period, one-twelfth of the product of (i) the 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
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related Distribution Date. Each REMIC III Component of a Class of Interest Only
Certificates shall accrue interest on a 30/360 Basis.
"Acquisition Date" shall mean, with respect to any REO Property, the
first day on which such REO Property is considered to be acquired by (or, in the
case of the Sangertown Square Mortgaged Property, 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.
"Additional Principal Distribution Amount" shall mean, with respect to
any Distribution Date, the aggregate of the Recovered Amounts included in, and
added to the Principal Distribution Amount for such Distribution Date for
purposes of calculating, the Adjusted Principal Distribution Amount for such
Distribution Date, pursuant to Section 1.03(c).
"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.
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"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 (other than the Sangertown Square
Trust Mortgage Loan or any Sangertown Square REO Trust 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), 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
any year subsequent to 2003 that is not a leap year or (y) February of any year
subsequent to 2003, 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 any year subsequent to 2003, 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 Actual/360 Accrued Interest
Amount" shall mean, with respect to any Loan REMIC Regular Interest, for any
Interest Accrual Period, an amount of interest equal to the product of (a) the
annual component interest rate in effect for the corresponding Sangertown Square
Loan Component as of the Closing Date (without regard to any modifications,
extensions, waivers or amendments of the Sangertown Square Trust Mortgage Loan
subsequent to the Closing Date and reduced by 10.0 basis points), multiplied by
(b) a fraction, the numerator of which is the number of days in such Interest
Accrual Period, and the denominator of which is 360, multiplied by (c) the
Uncertificated Principal Balance of such Loan REMIC Regular Interest 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
any year subsequent to 2003 that is not a leap year or (y) February of any year
subsequent to 2003, then the amount of interest calculated with respect to any
particular Loan REMIC 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 Sangertown Square Trust
Mortgage Loan or any Sangertown Square REO Trust 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 (but only to the extent that such Interest Reserve Amount is
attributable to the corresponding Sangertown Square Loan Component in respect of
the subject Loan REMIC Regular Interest); and provided, further, that, if the
subject Interest Accrual Period ends during March of any year subsequent to
2003, then the amount calculated with respect to any particular Loan REMIC
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 Sangertown Square Trust Mortgage Loan or
any Sangertown Square REO Trust 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
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ends (but only to the extent that such Interest Reserve Amount(s) is (are)
attributable to the corresponding Sangertown Square Loan Component in respect of
the subject Loan REMIC Regular Interest).
"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, 3.636% 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 December 2003 through and including the Interest Accrual Period
ending in November 2005, 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 November 2005, 3.636%
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 December 2003 through and including the Interest Accrual Period
ending in November 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 November 2006, 3.636%
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 December 2003 through and including the Interest Accrual Period
ending in November 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 November 2006, 4.207%
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 December 2003 through and including the Interest Accrual Period
ending in November 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 November 2007, 4.207%
per annum;
(f) 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 December 2003 through and including the Interest Accrual Period
ending in November 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 November 2007, 4.830%
per annum;
(g) 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 December 2003 through and including the Interest Accrual Period
ending in November 2008, 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
November 2008, 4.830% per annum;
(h) with respect to REMIC II Regular Interest A-3-3, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in December 2003 through and including the Interest Accrual Period
ending in November 2009, 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 November 2009, 4.830%
per annum;
(i) 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 December 2003 through and including the Interest Accrual Period
ending in November 2009, 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 November 2009, an
annual rate equal to the lesser of (X) the Weighted Average REMIC I
Remittance Rate for the subject Interest Accrual Period and (Y) 5.124% per
annum;
(j) 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 December 2003 through and including the Interest Accrual Period
ending in November 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 November 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) 5.124% per
annum;
(k) with respect to REMIC II Regular Interest B, (i) for any Interest
Accrual Period from and including the Interest Accrual Period ending in
December 2003 through and including the Interest Accrual Period ending in
November 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 November 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) 5.178% per
annum;
(l) with respect to REMIC II Regular Interest C, (i) for any Interest
Accrual Period from and including the Interest Accrual Period ending in
December 2003 through and including the Interest Accrual Period ending in
November 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 November 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) 5.207% per
annum;
(m) with respect to REMIC II Regular Interest D-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in December 2003 through and including the Interest Accrual Period
ending in November 2009, 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 November 2009, an
annual rate equal to the lesser of (X) the Weighted Average REMIC I
Remittance Rate for the subject Interest Accrual Period and (Y) 5.237% per
annum;
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(n) with respect to REMIC II Regular Interest D-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in December 2003 through and including the Interest Accrual Period
ending in November 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 November 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) 5.237% per
annum;
(o) with respect to REMIC II Regular Interest E, (i) for any Interest
Accrual Period from and including the Interest Accrual Period ending in
December 2003 through and including the Interest Accrual Period ending in
November 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 November 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) 5.266% per
annum;
(p) with respect to REMIC II Regular Interest F, (i) for any Interest
Accrual Period from and including the Interest Accrual Period ending in
December 2003 through and including the Interest Accrual Period ending in
November 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 November 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) 5.296% per
annum;
(q) with respect to REMIC II Regular Interest G-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in December 2003 through and including the Interest Accrual Period
ending in November 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 November 2006, an
annual rate equal to the lesser of (X) the Weighted Average REMIC I
Remittance Rate for the subject Interest Accrual Period and (Y) 5.350% per
annum;
(r) with respect to REMIC II Regular Interest G-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
ending in December 2003 through and including the Interest Accrual Period
ending in November 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 November 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) 5.350% per
annum;
(s) with respect to each of REMIC II Regular Interest H, REMIC II
Regular Interest J and 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; and
(t) 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,
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an annual rate equal to the lesser of (i) the Weighted Average REMIC I
Remittance Rate for the subject Interest Accrual Period, and (ii) 5.394%
per annum.
"Administered REO Property" shall mean any REO Property other than, if
applicable, any Sangertown Square REO Property.
"Administrative Cost Rate" shall mean, (A) with respect to the
Sangertown Square Trust Mortgage Loan (or any Sangertown Square REO Trust
Mortgage Loan), the sum of (i) 0.10% per annum calculated on an Actual/360 Basis
and (ii) 0.00157% per annum calculated on a 30/360 Basis; and (B) with respect
to 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 other Trust Mortgage
Loan (or 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 the Grantor Trust as a grantor trust under the Grantor Trust
Provisions or any imposition of a tax on the Grantor Trust or any of its assets
or transactions.
"Adverse Rating Event" shall mean, with respect to any Class of
Certificates, as of any date of determination, the qualification, downgrade or
withdrawal of any rating then assigned to such Class of Certificates by either
Rating Agency.
"Adverse REMIC Event" shall mean, with respect to any REMIC Pool, any
endangerment of the status of such REMIC Pool as a REMIC under the REMIC
Provisions or, except as permitted by Section 3.17(a), any imposition of a tax
on such REMIC Pool or any of its assets or transactions (including the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code, the tax on
prohibited contributions set forth in Section 860G(d) of the Code and/or the tax
on "net income from foreclosure property" as defined in Section 860G(c) of the
Code).
"Affiliate" shall mean, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control", when used with
respect to any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" shall mean this Pooling and Servicing Agreement, together
with all amendments hereof and supplements hereto.
"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.
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"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 Determination Date
immediately following the later of the date on which the subject Serviced Trust
Mortgage Loan became a Required Appraisal Loan and the date on which the
applicable Required Appraisal was obtained and thereafter as of each subsequent
Determination Date during the period that such Serviced Trust Mortgage Loan
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 the Fiscal Agent, all unpaid interest on
such Required Appraisal Loan through the most recent Due Date prior to the date
of calculation (exclusive of any portion thereof that represents Additional
Interest and/or Default Interest), (iii) all accrued and unpaid Special
Servicing Fees, Liquidation Fees and Workout Fees in respect of such Required
Appraisal Loan, (iv) all related unreimbursed Advances made by or on behalf of
(plus all accrued interest on such Advances payable to) the Master Servicer, the
Special Servicer, the Trustee and/or the Fiscal Agent with respect to such
Required Appraisal Loan, (v) any other unpaid Additional Trust Fund Expenses in
respect of such Required Appraisal Loan, and (vi) all currently due and unpaid
real estate taxes and assessments, insurance premiums and, if applicable, ground
rents, and any unfunded improvement or other applicable reserves, in respect of
the related Mortgaged Property or REO Property, as the case may be (in each
case, net of any amounts escrowed with the Master Servicer or the Special
Servicer for such items); over (b) the Required Appraisal Value. Notwithstanding
the foregoing, if (i) any Serviced Trust Mortgage Loan 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 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 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. Except where expressly noted herein
to the contrary in connection with the XX Xxxx Loan Group, 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 in respect of a Serviced Trust Mortgage Loan shall be
reduced to zero as of the date such Serviced Trust Mortgage Loan ceases to be a
Required Appraisal Loan, and no Appraisal Reduction Amount shall exist as to any
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Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto after it has been paid in full, liquidated, repurchased or
otherwise disposed of. "Appraisal Reduction Amount" shall mean, with respect to
the Sangertown Square Trust Mortgage Loan or any Sangertown Square REO Trust
Mortgage Loan, an amount (calculated as of each Determination Date for so long
as a Sangertown Square Appraisal Reduction Amount is reported to exist under the
Sangertown Square Servicing Agreement) equal to the lesser of (i) the Sangertown
Square Appraisal Reduction Amount most recently reported under the Sangertown
Square Servicing Agreement as of the subject Determination Date and (ii) the
Stated Principal Balance of the Sangertown Square Trust Mortgage Loan or any
Sangertown Square REO Trust Mortgage Loan, as the case may be, as of the subject
Distribution Date.
"Appraised Value" shall mean, with respect to each Mortgaged Property
or REO Property, the appraised value thereof based upon the most recent
appraisal or update thereof prepared by an Independent Appraiser that is
contained in the related Servicing File or, in the case of any such property
with or that had, as the case may be, an allocated loan amount of, or securing a
Trust Mortgage Loan or relating to an REO Trust Mortgage Loan, as the case may
be, with a Stated Principal Balance of, less than $2,000,000, either (a) the
most recent appraisal or update thereof that is contained in the related
Servicing File or (b) the most recent "desktop" value estimate performed by the
Special Servicer that is contained in the related Servicing File.
"ARD Mortgage Loan" shall mean 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 XX
Xxxx Non-Trust Mortgage Loan, if applicable, as of which (i) such XX Xxxx
Non-Trust Mortgage Loan remains outstanding and (ii) the XX Xxxx Trust Mortgage
Loan that is part of the same XX Xxxx Loan Pair as such XX Xxxx Non-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
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Stated Maturity Date; and (b) with respect to any REO Mortgage Loan, for any Due
Date as of which the related REO Property (or, in the case of any REO Mortgage
Loan that is part of the Sangertown Square Loan Pair, 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 (including any Xxxxxxxxxx Xxxxxx
X&X Advances made on the Sangertown Square Trust Mortgage Loan or any Sangertown
Square REO Trust Mortgage Loan under the Sangertown Square Servicing Agreement)
that (A) were Received by the Trust as of the end of the related Collection
Period and (B) are on deposit in the Collection Account as of 12:00 noon (New
York City time) on such Distribution Date, (ii) any Xxxxxxxxxx Xxxxxx X&X
Advance made on the Sangertown Square Trust Mortgage Loan or any Sangertown
Square REO Trust Mortgage Loan under the Sangertown Square Servicing Agreement
that (A) was Received by the Trust after the end of the related Collection
Period, but on or before 12 noon (New York City time) on the related Master
Servicer Remittance Date, and (B) is on deposit in the Collection Account as of
12:00 noon (New York City time) on such Distribution Date, (iii) the aggregate
amount of any P&I Advances made by the Master Servicer, the Trustee and/or the
Fiscal Agent with respect to the Mortgage Pool for distribution on the
Certificates on such Distribution Date pursuant to Section 4.03, (iv) the
aggregate amount deposited by the Master Servicer in the Collection Account for
such Distribution Date pursuant to Section 3.19(a) in connection with Prepayment
Interest Shortfalls on the Mortgage Pool, (v) 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
(vi) to the extent not included in the amount described in clause (a)(i) of this
definition, if such Distribution Date occurs during March of any year subsequent
to 2003, 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 related Collection Period, (ii) any amounts payable or reimbursable to
any Person from the Collection Account pursuant to clauses (ii) through (v) of
Section 3.05(b), (iii) Prepayment Premiums, Yield Maintenance Charges and/or
Additional Interest, (iv) if such Distribution Date occurs during January of any
year subsequent to 2003 that is not a leap year or during February of any year
subsequent to 2003, 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 clauses (b)(i) and (b)(iv) shall not apply on
the Final Distribution Date.
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"XX Xxxx Change of Control Event" shall mean that the aggregate unpaid
principal balance of the XX Xxxx Non-Trust Mortgage Loans (or any successor REO
Mortgage Loans with respect thereto), reduced (to not less than zero) by any
Appraisal Reduction Amount attributable to the XX Xxxx Loan Group (calculated as
if the XX Xxxx Loan Group were a single Trust Mortgage Loan or REO Trust
Mortgage Loan, as the case may be), is less than 50% of an amount equal to (i)
the aggregate original unpaid principal balance of the XX Xxxx Non-Trust
Mortgage Loans, less (ii) any borrower principal payments received on and
allocated to the XX Xxxx Non-Trust Mortgage Loans.
"XX Xxxx Co-Lender Agreement" shall have the meaning assigned thereto
in the Preliminary Statement.
"XX Xxxx Controlling Non-Trust Mortgage Loan Noteholder" shall mean
the "Controlling Note B Lender" under, and within the meaning of, the XX Xxxx
Co-Lender Agreement.
"XX Xxxx Cure Rights" shall mean the rights granted to the XX Xxxx
Non-Trust Mortgage Loan Noteholders (or any of them) or its/their designee to
cure certain events of default occurring with respect to the XX Xxxx Loan Group,
as set forth in Section 5.02 of the XX Xxxx Co-Lender Agreement.
"XX Xxxx Custodial Account" shall mean the segregated account or
accounts (or the segregated sub-account of the Pool Custodial Account) created
and maintained by the Master Servicer pursuant to Section 3.04A on behalf of the
XX Xxxx Noteholders, which shall be entitled "[NAME OF MASTER SERVICER], as
Master Servicer, in trust for [NAMES OF XX XXXX NOTEHOLDERS], as their interests
may appear, XX Xxxx Custodial Account".
"XX Xxxx Loan Group" shall mean, collectively, all of the XX Xxxx
Mortgage Loans (and any successor REO Mortgage Loans with respect thereto).
"XX Xxxx Loan Pair" shall have the meaning assigned thereto in the
Preliminary Statement (and shall include any successor REO Mortgage Loans with
respect thereto).
"XX Xxxx Mortgage Loan" shall mean any XX Xxxx Trust Mortgage Loan or
XX Xxxx Non-Trust Mortgage Loan.
"XX Xxxx Mortgaged Properties" shall have the meaning assigned thereto
in the Preliminary Statement.
"XX Xxxx Non-Trust Mortgage Loan Noteholder" shall mean the holder of
the Mortgage Note for a XX Xxxx Non-Trust Mortgage Loan.
"XX Xxxx Non-Trust Mortgage Loans" shall have the meaning assigned
thereto in the Preliminary Statement.
"XX Xxxx Noteholders" shall mean, collectively, the respective holders
of the respective Mortgage Notes for the XX Xxxx Mortgage Loans.
"XX Xxxx 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 XX Xxxx Noteholders,
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which shall be entitled "[NAME OF SPECIAL SERVICER], as Special Servicer, in
trust for [NAMES OF XX XXXX NOTEHOLDERS], as their interests may appear, XX Xxxx
REO Account".
"XX Xxxx REO Mortgage Loan" shall mean any REO Mortgage Loan relating
to a XX Xxxx Mortgage Loan, including a XX Xxxx REO Trust Mortgage Loan.
"XX Xxxx REO Property" shall mean a XX Xxxx Mortgaged Property, if
such Mortgaged Property becomes an REO Property hereunder.
"XX Xxxx REO Trust Mortgage Loan" shall mean any REO Trust Mortgage
Loan relating to a XX Xxxx Trust Mortgage Loan.
"XX Xxxx Servicing Reports" shall mean, with respect to the XX Xxxx
Loan Pair, each of the CMSA Delinquent Loan Status Report, CMSA Historical Loan
Modification and Corrected Mortgage Loan Report, CMSA Historical Liquidation
Report, CMSA REO Status Report, Loan Payoff Notification Report, CMSA Loan
Periodic Update File, CMSA Property File, CMSA Financial File, CMSA Loan Setup
File, CMSA Servicer Watch List, CMSA Operating Statement Analysis, CMSA NOI
Adjustment Worksheet and CMSA Comparative Financial Status Report, each as may
be modified to reflect the fact that just the XX Xxxx Mortgage Loans, the XX
Xxxx Mortgaged Properties or the XX Xxxx REO Properties, as the case may be, are
the subject of such report.
"XX Xxxx Special Servicer" shall have the meaning assigned thereto in
Section 7.01(d).
"XX Xxxx Specially Designated Servicing Action" shall mean any of the
actions referred to in clauses (i) through (x) of Section 6.11(a), but only
insofar as such actions relate to one or more of the XX Xxxx Mortgage Loans
and/or XX Xxxx REO Properties.
"XX Xxxx Trust Mortgage Loans" shall have the meaning assigned thereto
in the Preliminary Statement, which Trust Mortgage Loans are identified on the
Trust Mortgage Loan Schedule by mortgage loan numbers 58, 60 and 65,
respectively, and are, in each case, together with the corresponding Non-Trust
Mortgage Loan, secured by a Mortgage on a XX Xxxx Mortgaged Property.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that by its
original terms or by virtue of any modification entered into as of the Closing
Date provides for an amortization schedule extending beyond its Stated Maturity
Date and as to which, in accordance with such terms, the Scheduled Payment due
on its Stated Maturity Date is significantly larger than the Scheduled Payment
due on the Due Date next preceding its Stated Maturity Date.
"Balloon Payment" shall mean, with respect to any Balloon Mortgage
Loan as of any date of determination, the payment, other than any regularly
scheduled monthly payment, due with respect to such Mortgage Loan at maturity.
"Balloon Trust Mortgage Loan" shall mean any Trust Mortgage Loan that
is a Balloon Mortgage Loan.
"Bid Allocation" shall mean, with respect to the Master Servicer or
any Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the
amount of such proceeds (net of any expenses incurred in connection with such
bid and the transfer of servicing), multiplied by a fraction equal to
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(a) the Servicer Fee Amount for the Master Servicer or such Sub-Servicer, as the
case may be, as of such date of determination, over (b) the aggregate of the
Servicer Fee Amounts for the Master Servicer and all of the Sub-Servicers as of
such date of determination.
"Book-Entry Certificate" shall mean any Certificate registered in the
name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any Non-Registered
Certificate that constitutes a Book-Entry Certificate.
"Book-Entry Subordinate Certificate" shall mean any Subordinate
Certificate that constitutes a Book-Entry Certificate.
"Breach" shall have the meaning assigned thereto in Section 2.03(a).
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York, or in any of the cities
in which the Corporate Trust Office of the Trustee, the Primary Servicing Office
of the Master Servicer or the Primary Servicing Office of the Special Servicer
are located, are authorized or obligated by law or executive order to remain
closed.
"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 2003-C8, Commercial Mortgage Pass-Through Certificates, Series 2003-C8, 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
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which such Certificate belongs, multiplied by (b) the amount specified on the
face of such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" shall mean the register maintained pursuant to
Section 5.02.
"Certificate Registrar" shall mean the registrar appointed pursuant to
Section 5.02.
"Certificateholder" shall mean the Person in whose name a Certificate
is registered in the Certificate Register, except that: (i) neither a
Disqualified Organization nor a Disqualified Non-United States Tax Person shall
be Holder of a Residual Interest Certificate for any purpose hereof; and (ii)
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement that relates to the rights and/or obligations of any of the
Depositor, the Master Servicer, the Special Servicer, the Fiscal Agent or the
Trustee in its respective capacity as such, any Certificate registered in the
name of the Depositor, the Master Servicer, the Special Servicer, the Fiscal
Agent or the Trustee, as the case may be, or any Certificate registered in the
name of any of its Affiliates, shall be deemed not to be outstanding, and the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver that relates to it has been
obtained. 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 Sangertown Square Trust Mortgage
Loan or a Sangertown Square REO Property that are deliverable under the
Sangertown Square Servicing Agreement to the Master Servicer on behalf of the
Trustee as holder of the Mortgage Note for the Sangertown Square 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).
"CIGNA Entity" shall have the meaning assigned thereto in Section
6.04(a).
"Class" shall mean, collectively, all of the Certificates bearing the
same alphabetical and, if applicable, numerical 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.
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"Class A-2 Certificate" shall mean any one of the Certificates with a
"Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-3 Certificate" shall mean any one of the Certificates with a
"Class A-3" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"Class A-4 Certificate" shall mean any one of the Certificates with a
"Class A-4" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in REMIC III for purposes of the REMIC Provisions.
"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 Unfunded Principal
Balance Reductions 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-4 attached hereto, and evidencing a portion of a class of "regular interests"
in REMIC III for purposes of the REMIC Provisions.
"Class F Certificate" shall mean any one of the Certificates with a
"Class F" designation on the face thereof, substantially in the form of Exhibit
A-4 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.
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"Class J Certificate" shall mean any one of the Certificates with a
"Class J" designation on the face thereof, substantially in the form of Exhibit
A-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.
"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 Unfunded Principal Balance
Reduction made with respect 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.
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"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.
"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 R-LR Certificate" shall mean any one of the Certificates with a
"Class R-LR" 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 the Sangertown Square Loan REMIC for purposes of the
REMIC Provisions.
"Class S Certificate" shall mean any of the Certificates with a "Class
S" designation on the face thereof, substantially in the form of Exhibit A-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 the Grantor
Trust Assets.
"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 the Grantor Trust, but not an asset of
any REMIC Pool.
"Class X-CL Certificate" shall mean any one of the Certificates with a
"Class X-CL" designation on the face thereof, substantially in the form of
Exhibit A-2 attached hereto, and evidencing a portion of 28 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 17 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.
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"Closing Date" shall mean November 25, 2003.
"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 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.
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"CMSA Historical Liquidation Report" shall mean a report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Historical Liquidation Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be approved
by the CMSA for commercial mortgage securities transactions generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan Report"
shall mean a report substantially in the form of, and containing the information
called for in, the downloadable form of the "Historical Loan Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following six electronic files: (i) CMSA Loan Setup File, (ii)
CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA Bond
Level File, (v) CMSA Financial File and (vi) CMSA Collateral Summary File;
and
(b) the following eight 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 and
(viii) CMSA NOI Adjustment Worksheet.
"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
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Statement Analysis Report" available as of the Closing Date on the CMSA Website
or in such other form for the presentation of such information and containing
such additional information as may from time to time be approved by the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Property File" shall mean a report substantially in the form of,
and containing the information called for in, the downloadable form of the
"Property File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA REO Status Report" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"REO Status Report" available as of the Closing Date on the CMSA Website, or in
such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Servicer Watch List" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Servicer Watch List" available as of the Closing Date on the CMSA Website,
or in such other form for the presentation of such information and containing
such additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Website" shall mean the CMSA's Website located at "xxx.xxxx.xxx"
or such other primary website as the CMSA may establish for dissemination of its
report forms.
"Code" shall mean the Internal Revenue Code of 1986 and regulations
promulgated thereunder, including temporary regulations and proposed regulations
to the extent that, by reason of their proposed effective date, could, as of the
date of any determination or opinion as to the tax consequences of any action or
proposed action or transaction, be applied to the Certificates.
"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 "LaSalle Bank National Association [OR NAME OF ANY SUCCESSOR
TRUSTEE], as Trustee, in trust for the registered holders of LB-UBS Commercial
Mortgage Trust 2003-C8, Commercial Mortgage Pass-Through Certificates, Series
2003-C8".
"Collection Period" shall mean, with respect to any Distribution Date
or Master Servicer Remittance Date, the period commencing on the day immediately
following the Determination Date in the calendar month preceding the month in
which such Distribution Date or Master Servicer Remittance Date, as the case may
be, occurs (or, in the case of each of the initial Distribution Date and the
initial Master Servicer Remittance Date, commencing immediately following the
Cut-off Date) and ending on and including the Determination Date in the calendar
month in which such Distribution Date or Master Servicer Remittance Date, as the
case may be, occurs.
"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 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed Securities
Trust Services Group - LB-UBS Commercial Mortgage Trust 2003-C8.
"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).
Notwithstanding anything to the contrary contained herein, neither Mortgage Loan
comprising the Sangertown Square Loan Pair 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
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
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Regular Interest A-2-1 and REMIC II Regular Interest A-2-2 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, REMIC II Regular Interest
A-3-2 and REMIC II Regular Interest A-3-3 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 D-1 and REMIC II Regular
Interest D-2 shall be a Corresponding REMIC II Regular Interest with respect to
the Class D Certificates; and 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); (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.
"Cross-Collateralized Group" shall mean any group of
Cross-Collateralized Mortgage Loans; provided that the Sangertown Square Loan
Pair shall not 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 neither of the Mortgage Loans in the Sangertown Square Loan Pair
shall constitute a Cross-Collateralized Mortgage Loan.
"Custodial Account" shall mean either the Pool Custodial Account or
the XX Xxxx 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 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 November 11, 2003.
"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, in respect of any
Mortgage Loan or any successor REO Mortgage Loan with respect thereto.
"Default Interest" shall mean, 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
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Rate (net of any applicable Additional Interest Rate included as part of such
Mortgage Rate), and (ii) 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, any Additional Interest.
"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
Trust 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 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.
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"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 December 2003.
"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 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 REO Property in a trade or business conducted by the REMIC Pool
that holds such Administered REO Property or any interest therein, 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 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' 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.
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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 shall be 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 a 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
December 2003, on which, among other things, the Trustee is to make
distributions on the Certificates, which date shall be the fourth Business Day
following the Determination Date in such calendar month.
"Distribution Date Statement" shall have the meaning assigned thereto
in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in Section
2.03(a).
"Due Date" shall mean: (i) with respect to any Mortgage Loan on or
prior to its Stated Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on such Mortgage Loan is scheduled
to be first due; (ii) with respect to any Mortgage Loan after its Stated
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on such Mortgage Loan had been scheduled to be first
due; and (iii) with respect to any REO Mortgage Loan, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment on the related
Mortgage Loan had been scheduled to be first due.
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"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, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Certificates, as evidenced in writing by such Rating Agency) at any time
funds are on deposit therein (if such funds are to be held for more than 30
days), or the short-term deposits of which are rated at least "P-1" by Moody's
and at least "A-1" by 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, as evidenced in writing by such Rating Agency) at any time
funds are on deposit therein (if such funds are to be held for 30 days or less);
or (ii) a segregated trust account maintained with the trust department of a
federal or state chartered depository institution or trust company acting in its
fiduciary capacity (which may be the Trustee), which has a combined capital and
surplus of at least $50,000,000, is subject to supervision or examination by
federal or state authority and, in the case of a state chartered depository
institution or trust company, is subject to regulations regarding fiduciary
funds on deposit therein substantially similar to 12 CFR Section 9.10(b); or
(iii) any other account, the use of which would not, in and of itself, cause an
Adverse Rating Event with respect to any Class of Certificates, as evidenced in
writing by each Rating Agency.
"Environmental Assessment" shall mean a "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of the Xxxxxx Mae Multifamily
Guide and the ASTM Standard for Environmental Site Assessments, each as amended
from time to time.
"Environmental Insurance Policy" shall mean, with respect to any
Mortgaged Property or REO Property, any insurance policy covering pollution
conditions and/or other environmental conditions that is maintained from time to
time in respect of such Mortgaged Property or REO Property, as the case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmentally Insured Mortgage Loans" shall mean the Serviced Trust
Mortgage Loans identified on Schedule IV hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Mortgagor for
application toward the payment of real estate 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
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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 XX Xxxx Trust Mortgage Loan or any successor
REO Trust Mortgage Loan with respect thereto, the portion of such Net
Liquidation Proceeds allocable to any other XX Xxxx Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto or payable to a XX Xxxx
Non-Trust Mortgage Loan Noteholder, 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 "LaSalle Bank National
Association [OR THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the
registered holders of LB-UBS Commercial Mortgage Trust 2003-C8, Commercial
Mortgage Pass-Through Certificates, Series 0000-X0".
"Xxxxxxxx Xxx" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Act Reports" shall have the meaning assigned thereto in
Section 8.15(a).
"Exemption-Favored Party" shall mean any of (i) Xxxxxx Brothers, (ii)
any Person directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with Xxxxxx Brothers, and
(iii) any member of any underwriting syndicate or selling group of which any
Person described in clauses (i) and (ii) is a manager or co-manager with respect
to a Class of Investment Grade Certificates.
"Xxxxxx Mae" shall mean the Federal National Mortgage Association or
any successor.
"FASB 140" shall mean the Financial Accounting Standards Board's
Statement No. 140, entitled "Accounting for Transfers and Servicing of Financial
Assets and Extinguishment of Liabilities", issued in September 2002.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date" shall mean the Distribution Date on which
the final distribution is to be made with respect to the Certificates in
connection with a termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination" shall mean a determination by the
Special Servicer with respect to any Specially Serviced Mortgage Loan or
Administered REO Property that there has been a recovery of all Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds and other payments or
recoveries that the Special Servicer has determined, in accordance with the
Servicing Standard, will be ultimately recoverable; provided that the term
"Final Recovery Determination" shall not apply to: (i) a Specially Serviced
Mortgage Loan that was paid in full; or (ii) a Specially Serviced Trust Mortgage
Loan or Administered REO Property, as the case may be, that was purchased by (A)
the Depositor pursuant to Section 2.03, (B) the UBS Mortgage Loan Seller
pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement, (C) a Purchase
Option Holder or its assignee pursuant to Section 3.18,
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(D) the Depositor, Xxxxxx Brothers, the Special Servicer, a Controlling Class
Certificateholder or the Master Servicer pursuant to Section 9.01, (E) the
holder of a related mezzanine loan in connection with a Mortgage Loan default,
as set forth in the related intercreditor agreement or (F) in the case of a XX
Xxxx Trust Mortgage Loan, a XX Xxxx Non-Trust Mortgage Loan Noteholder or its
designee pursuant to the XX Xxxx Co-Lender Agreement; and provided, further,
that the term "Final Recovery Determination" shall include any comparable
determination made by the Sangertown Square Special Servicer under the
Sangertown Square Servicing Agreement with respect to the Sangertown Square
Trust Mortgage Loan or a Sangertown Square REO Property.
"Fiscal Agent" shall mean ABN AMRO, in its capacity as fiscal agent
hereunder, or any successor fiscal agent appointed as herein provided.
"FV Bid" shall have the meaning assigned thereto in Section 3.18(d).
"FV Price" shall have the meaning assigned thereto in Section 3.18(c).
"GAAP" shall mean generally accepted accounting principles in the
United States of America.
"General Special Servicer" shall have the meaning assigned thereto in
Section 7.01(d).
"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 that certain "grantor trust" (within the
meaning of the Grantor Trust Provisions) consisting of the Grantor Trust Assets.
"Grantor Trust Assets" shall mean any Additional Interest Received by
the Trust with respect to an ARD Trust Mortgage Loan (or any successor REO Trust
Mortgage Loan with respect thereto) after its Anticipated Repayment Date.
"Grantor Trust Provisions" shall mean Subpart E 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.
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"Holder" shall mean a Certificateholder.
"HUD-Approved Servicer" shall mean a servicer that is a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to Sections
203 and 211 of the National Housing Act.
"Independent" shall mean, when used with respect to any specified
Person, any such Person who (i) is in fact independent of the Depositor, each
Mortgage Loan Seller, the Master Servicer, the Special Servicer, any Controlling
Class Certificateholder, any Non-Trust Mortgage Loan Noteholder and any and all
Affiliates thereof, (ii) does not have any direct financial interest in or any
material indirect financial interest in any of the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Controlling Class
Certificateholder, any Non-Trust Mortgage Loan Noteholder, or any Affiliate
thereof, and (iii) is not connected with the Depositor, any Mortgage Loan
Seller, the Master Servicer, the Special Servicer, any Controlling Class
Certificateholder, any Non-Trust Mortgage Loan Noteholder or any Affiliate
thereof as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions; provided, however, that a
Person shall not fail to be Independent of the Depositor, a Mortgage Loan
Seller, the Master Servicer, the Special Servicer, a Controlling Class
Certificateholder, a Non-Trust Mortgage Loan Noteholder or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any class of
securities issued by the Depositor, such Mortgage Loan Seller, the Master
Servicer, the Special Servicer, such Controlling Class Certificateholder, such
Non-Trust Mortgage Loan Noteholder or any Affiliate thereof, as the case may be,
provided that such ownership constitutes less than 1% of the total assets owned
by such Person.
"Independent Appraiser" shall mean an Independent professional real
estate appraiser who (i) is a member in good standing of the Appraisal
Institute, (ii) if the state in which the subject 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 a REMIC Pool within the meaning of
Section 856(d)(3) of the Code if such REMIC Pool were a real estate investment
trust (except that the ownership test set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35 percent
or more of any Class of Certificates, or such other interest in any Class of
Certificates as is set forth in an Opinion of Counsel, which shall be at no
expense to the Master Servicer, the Special Servicer, the Trustee or the Trust
Fund, delivered to the Trustee) (and, if any XX Xxxx REO Property is involved,
to the affected XX Xxxx Non-Trust Mortgage Loan Noteholders), 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 any XX Xxxx REO Property is
involved, by the affected XX Xxxx Non-Trust Mortgage Loan Noteholders) 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.
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"Initial Bidder" shall have the meaning assigned thereto in Section
3.18(d).
"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 Loan REMIC
Regular Interest, any REMIC I Regular Interest, any REMIC II Regular Interest,
any Class of Regular Interest Certificates or any particular REMIC III Component
of a Class of Interest Only Certificates, in each case consisting of one of the
following: (i) a 360-day year consisting of twelve 30-day months; (ii) actual
number of days elapsed in a 360-day year; (iii) actual number of days elapsed in
a 365-day year; or (iv) actual number of days elapsed in an actual calendar year
(taking account of leap year).
"Interest Accrual Period" shall mean, with respect to any Loan REMIC
Regular Interest, any REMIC I Regular Interest, any REMIC II Regular Interest,
any Class of Regular Interest Certificates or any particular REMIC III Component
of a Class of Interest Only Certificates, 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, the 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 "LaSalle Bank National
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Association [OR THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the
registered holders of LB-UBS Commercial Mortgage Trust 2003-C8, Commercial
Mortgage Pass-Through Certificates, Series 2003-C8".
"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 2004 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 to an
ARD Trust Mortgage Loan after the related Anticipated Repayment Date, and net of
10.0 basis points in the case of the Sangertown Square Trust Mortgage Loan or
any Sangertown Square 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 (or, in the case of the Sangertown Square Mortgage
Loan or any Sangertown Square REO Trust Mortgage Loan, a Xxxxxxxxxx Xxxxxx X&X
Advance) 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.
"IRS" shall mean the Internal Revenue Service or any successor agency.
"LaSalle" shall mean LaSalle Bank National Association or its
successor in interest.
"Late Collections" shall mean: (a) with respect to any Trust Mortgage
Loan, all amounts Received by the Trust in connection therewith during any
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 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
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 Collection Period and not previously
recovered.
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"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 November 12, 2003, 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.
"Legal Final Distribution Date" shall mean, with respect to any Loan
REMIC Regular Interest, any REMIC I Regular Interest, any REMIC II Regular
Interest, any Class of Regular Interest Certificates or any particular REMIC III
Component of a Class of Interest Only Certificates, the "latest possible
maturity date" thereof, calculated solely for purposes of satisfying Treasury
regulations section 1.860G-1(a)(4)(iii).
"Xxxxxx Brothers" shall mean Xxxxxx Brothers Inc. or its successor in
interest.
"Xxxxxx Mortgage Loan Seller" shall mean 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.
"Lennar" shall mean Lennar Partners, Inc. or its successor in
interest.
"Liquidation Event" shall mean: (a) with respect to any Trust Mortgage
Loan or any Serviced Non-Trust Mortgage Loan, any of the following events--(i)
such Mortgage Loan is paid in full, (ii) a Final Recovery Determination is made
with respect to such Mortgage Loan, (iii) in the case of a Trust Mortgage Loan,
such Mortgage Loan is repurchased by the Depositor pursuant to Section 2.03 or
by the UBS Mortgage Loan Seller pursuant to the UBS/Depositor Mortgage Loan
Purchase Agreement, (iv) in the case of a Trust Mortgage Loan, such Mortgage
Loan is purchased by a Purchase Option Holder or its assignee pursuant to
Section 3.18, (v) in the case of a Trust Mortgage Loan, such Mortgage Loan is
purchased by the Depositor, Xxxxxx Brothers, the Special Servicer, a Controlling
Class Certificateholder or the Master Servicer pursuant to Section 9.01, (vi)
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 or (vii) in the case of a XX Xxxx Trust Mortgage Loan,
such Mortgage Loan is purchased by a XX Xxxx Non-Trust Mortgage Loan Noteholder
or its designee pursuant to the XX Xxxx Co-Lender Agreement; and (b) with
respect to any REO Property (and the related REO Trust Mortgage Loan), any of
the following events--(i) a Final Recovery Determination is made with respect to
such REO Property, (ii) such REO Property is purchased by the Depositor pursuant
to Section 2.03 or by 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 pursuant to Section 9.01.
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"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 or Administered REO Property pursuant to
Sections 3.09 or 3.18 (including legal fees and expenses, committee or referee
fees and, if applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean the fee designated as such in, and
payable to the Special Servicer in connection with certain specified events in
respect of a Specially Serviced Trust 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 a XX Xxxx Non-Trust Mortgage Loan or any successor REO
Mortgage Loan with respect thereto, collected on behalf of the related XX Xxxx
Non-Trust Mortgage Loan Noteholder) in connection with: (i) the full or partial
liquidation of a Mortgaged Property or other collateral constituting security
for a defaulted Trust Mortgage Loan or Serviced Non-Trust 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 Specially Serviced Trust Mortgage Loan by a
Purchase Option Holder or its assignee 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 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 pursuant to Section
9.01; (vi) the purchase of a Trust Mortgage Loan or Serviced Non-Trust Mortgage
Loan by the holder of a related mezzanine loan on behalf of the related
Mortgagor in connection with a Mortgage Loan default, as set forth in the
related intercreditor agreement; or (vii) in the case of a XX Xxxx Trust
Mortgage Loan, the purchase of such Trust Mortgage Loan by a XX Xxxx Non-Trust
Mortgage Loan Noteholder or its designee pursuant to the XX Xxxx Co-Lender
Agreement.
"Loan Pair" shall mean the Sangertown Square Loan Pair and any XX Xxxx
Loan Pair.
"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
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).
"Loan REMIC Regular Interest" shall mean any of the four
uncertificated "regular interests" (within the meaning of Section 860G(a)(1) of
the Code) in the Sangertown Square Loan REMIC, as described (and bearing the
designations specified) in the Preliminary Statement hereto.
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"Loan REMIC Remittance Rate" shall mean, with respect to any Loan
REMIC Regular Interest, a rate per annum that is, for any Interest Accrual
Period, equal to (i) a fraction (expressed as a percentage), the numerator of
which is the product of 12 times the Adjusted Actual/360 Accrued Interest Amount
with respect to such Loan REMIC Regular Interest for such Interest Accrual
Period, and the denominator of which is the Uncertificated Principal Balance of
such Loan REMIC Regular Interest immediately prior to the Distribution Date that
corresponds to such Interest Accrual Period, minus (ii) 0.00157%.
"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 Loan REMIC Regular Interest, for any
Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) REMIC I with
respect to such Loan REMIC Regular Interest on all prior Distribution
Dates, if any;
(b) with respect to any REMIC I Regular Interest, for any Distribution
Date, the total amount of all Unfunded Principal Balance Reductions, if
any, incurred by (but not reimbursed to) REMIC II with respect to such
REMIC I Regular Interest on all prior Distribution Dates, if any;
(c) with respect to any REMIC II Regular Interest, for any
Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) REMIC III with
respect to such REMIC II Regular Interest on all prior Distribution Dates,
if any; and
(d) with respect to any Class of Principal Balance Certificates, for
any Distribution Date, the total amount of all Unfunded Principal Balance
Reductions, if any, incurred by (but not reimbursed to) the Holders of such
Class of Certificates on all prior Distribution Dates, if any.
For purposes of this definition: (x) any increase in the Class
Principal Balance of any Class of Principal Balance Certificates pursuant to
Section 4.05(a) shall constitute a reimbursement to the Holders of such Class of
Principal Balance Certificates of any related Unfunded Principal Balance
Reductions; and (y) any increase in the Uncertificated Principal Balance of any
REMIC II Regular Interest pursuant to Section 4.05(c) shall constitute a
reimbursement to REMIC III with respect to any related Unfunded Principal
Balance Reductions relating to such REMIC II Regular Interest.
"LUBS/Depositor Mortgage Loan Purchase Agreement" shall mean that
certain Mortgage Loan Purchase Agreement dated as of November 12, 2003, between
LBHI, LUBS Inc. as mortgage loan seller and the Depositor.
"LUBS Mortgage Loan Seller" shall mean LUBS, Inc. or its successor in
interest.
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"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.
"Master Servicer" shall mean Wachovia, in its capacity as master
servicer hereunder, or any successor master servicer appointed as herein
provided.
"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
Master Servicer Remittance Date, an amount equal to: (a) the sum of (i) the
aggregate amount of all payments and other collections on or with respect to the
Trust Mortgage Loans and any related REO Properties (including any Xxxxxxxxxx
Xxxxxx X&X Advances made with respect to the Sangertown Square Trust Mortgage
Loan or any Sangertown Square REO Trust Mortgage Loan under the Sangertown
Square Servicing Agreement) that (A) were Received by the Trust as of the close
of business on the immediately preceding Determination Date and (B) 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 Master Servicer Remittance Date,
including any such payments and other collections transferred to the Pool
Custodial Account from the Pool REO Account (if established), (ii) any
Xxxxxxxxxx Xxxxxx X&X Advance made with respect to the Sangertown Square Trust
Mortgage Loan or any Sangertown Square REO Trust Mortgage Loan under the
Sangertown Square Servicing Agreement that (A) was Received by the Trust after
the end of the related Collection Period, but on or before 12:00 noon (New York
City time) on such Master Servicer Remittance Date, and (B) is on deposit in the
Pool Custodial Account as of 12:00 noon (New York City time) on such Master
Servicer Remittance Date, and (iii) to the extent not included in the amount
described in clause (a)(i) of this definition, any amounts transferred to the
Pool Custodial Account from the XX Xxxx Custodial Account on such Master
Servicer Remittance 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 related Collection Period, (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 the date each month,
commencing in December 2003, 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.
"Master Servicing Fee" shall mean, with respect to each Serviced
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), the
fee designated as such and payable to the Master Servicer pursuant to Section
3.11(a).
"Master Servicing Fee Rate" shall mean: (a) with respect to each
Serviced Trust Mortgage Loan (and any successor REO Trust Mortgage Loan with
respect thereto), a rate per annum equal to the related Administrative Cost Rate
minus the Trustee Fee Rate; and (b) with respect to each Serviced Non-Trust
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), 0.07%
per annum.
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"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).
"Modified Loan" shall mean any Serviced Trust 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 either Mortgage Loan that comprises the Sangertown Square Loan Pair, by the
applicable Sangertown Square Servicer pursuant to the Sangertown Square
Servicing Agreement), including any Balloon Payment payable in respect of such
Mortgage Loan on such Due Date; provided that the Monthly Payment due in respect
of any Mortgage Loan shall not include Default Interest; and provided, further,
that the Monthly Payment due in respect of any ARD Mortgage Loan after its
Anticipated Repayment Date shall not include Additional Interest; and provided,
further, that if the related loan documents for any Loan Pair provide for a
single monthly debt service payment for the entire such Loan Pair, then the
Monthly Payment for each Mortgage Loan comprising such Loan Pair for any Due
Date shall be that portion of the monthly debt service payment for such Loan
Pair and such Due Date that is, in accordance with the related loan documents
and/or the related co-lender, intercreditor or similar 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 Pair.
"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, the
Fiscal Agent, the Master
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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 XX Xxxx Trust Mortgage Loan, also with respect to the corresponding
XX Xxxx Non-Trust Mortgage Loan that is part of the same XX Xxxx Loan Pair,
the following documents collectively (which, in the case of each XX Xxxx
Loan Pair, 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 XX Xxxx Loan Pair:
(i) (A) the original executed Mortgage Note for such Trust
Mortgage Loan, endorsed (without recourse, representation or
warranty, express or implied) to the order of "LaSalle Bank
National Association, as trustee for the registered holders
of LB-UBS Commercial Mortgage Trust 2003-C8, Commercial
Mortgage Pass-Through Certificates, Series 2003-C8" 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 XX Xxxx Loan Pair, a copy
of the executed Mortgage Note for the XX Xxxx Non-Trust
Mortgage Loan in such XX Xxxx Loan Pair;
(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 has not been returned from the applicable recording
office) with evidence of recording indicated thereon;
(iv) an original executed assignment, in recordable form (except
for recording information not yet available if the
instrument being assigned has not been returned from the
applicable recording office), of (A) the Mortgage and (B)
any related Assignment of Leases (if such item is a document
separate from the Mortgage), in favor of "LaSalle Bank
National Association, in its capacity as trustee for the
registered holders of LB-UBS Commercial Mortgage Trust
2003-C8, Commercial Mortgage Pass-Through Certificates,
Series 2003-C8" (or, in the case of each XX Xxxx Loan Pair,
in
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favor of "LaSalle Bank National Association, in its capacity
as trustee for the registered holders of LB-UBS Commercial
Mortgage Trust 2003-C8, Commercial Mortgage Pass-Through
Certificates, Series 2003-C8, and in its capacity as lead
lender on behalf of the holder of the related Note B") (or,
in each case, a copy thereof, certified to be the copy of
such assignment submitted for recording);
(v) an original or a copy of the assignment of all unrecorded
documents relating to such Trust Mortgage Loan, in favor of
"LaSalle Bank National Association, as trustee for the
registered holders of LB-UBS Commercial Mortgage Trust
2003-C8, Commercial Mortgage Pass-Through Certificates,
Series 2003-C8" (or, in the case of each XX Xxxx Loan Pair,
in favor of "LaSalle Bank National Association, in its
capacity as trustee for the registered holders of LB-UBS
Commercial Mortgage Trust 2003-C8, Commercial Mortgage
Pass-Through Certificates, Series 2003-C8, and in its
capacity as lead lender on behalf of the holder of the
related Note B");
(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 (or, if
applicable, either Mortgage Note of a XX Xxxx Loan Pair) 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) with respect to Serviced Trust Mortgage Loans secured by
hospitality properties only, filed copies (with evidence of
filing) of any prior effective UCC Financing Statements in
favor of the originator of such Trust Mortgage Loan or in
favor of any assignee prior to the Trustee (but only to the
extent the related Mortgage Loan Seller had possession of
such UCC Financing Statements prior to the Closing Date) and
an original assignment thereof, as appropriate, in form
suitable for filing, in favor of "LaSalle Bank National
Association, in its capacity as trustee for the registered
holders of LB-UBS Commercial Mortgage Trust 2003-C8,
Commercial Mortgage Pass-Through Certificates, Series
2003-C8" (or, in the case of each XX Xxxx Loan Pair, in
favor of "LaSalle Bank National Association, in its capacity
as trustee for the registered holders of LB-UBS Commercial
Mortgage Trust 2003-C8, Commercial Mortgage Pass-Through
Certificates, Series 2003-C8, and in its capacity as lead
lender on behalf of the holder of the related Note B");
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(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 "LaSalle Bank National Association, in its capacity
as trustee for the registered holders of LB-UBS Commercial
Mortgage Trust 2003-C8, Commercial Mortgage Pass-Through
Certificates, Series 2003-C8" (or, in the case of each XX
Xxxx Loan Pair, in favor of "LaSalle Bank National
Association, in its capacity as trustee for the registered
holders of LB-UBS Commercial Mortgage Trust 2003-C8,
Commercial Mortgage Pass-Through Certificates, Series
2003-C8, and in its capacity as lead lender on behalf of the
holder of the related Note B");
(xvi) if such Trust Mortgage Loan is a XX Xxxx Trust Mortgage
Loan, a copy of the XX Xxxx 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; and
(xviii) an original or copy of any related Environmental
Insurance Policy; and
(b) with respect to the Sangertown Square Trust Mortgage Loan, the
following documents collectively:
(i) the original executed Mortgage Note for such Trust Mortgage
Loan, endorsed (without recourse, representation or
warranty, express or implied) to the order of "LaSalle Bank
National Association, as trustee for the registered holders
of LB-UBS Commercial Mortgage Trust 2003-C8, Commercial
Mortgage Pass-Through Certificates, Series 2003-C8" or in
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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 Sangertown Square Co-Lender and
Servicing Agreement; and
(iii) a copy of the Series 2000-C3 Pooling and Servicing
Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or a Custodian on its behalf for documents
described in clauses (a)(vi) and (a)(ix) through (a)(xviii) 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 Noteholders, including, in the case of the Sangertown
Square Loan Pair, any such documents held by or on behalf of the Sangertown
Square Non-Trust Mortgage Loan Noteholder.
"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, collectively, all of the Trust Mortgage
Loans and any REO Trust Mortgage Loans.
"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
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(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 either Mortgage Loan that comprises the Sangertown
Square Loan Pair, by the applicable Sangertown Square Servicer in accordance
with the Sangertown Square Servicing Agreement) or in connection with a
bankruptcy, insolvency or similar proceeding involving the related Mortgagor. In
the case of each Mortgage Loan or REO Mortgage Loan, as applicable, comprising
the Sangertown Square Loan Pair, the related annualized rate referred to in the
preceding sentence is the weighted average of the component interest rates for
the Sangertown Square Loan Components. 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 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: (a) with respect to any Serviced Trust
Mortgage Loan or any successor REO Trust Mortgage Loan with respect thereto,
have the meaning assigned thereto in Section 3.26(a); and (b) with respect to
any XX Xxxx Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto, have the meaning assigned thereto in Section 3.26(c).
"Net Investment Earnings" shall mean, with respect to any Investment
Account for any Collection Period, the amount, if any, by which the aggregate of
all interest and other income realized during such Collection 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 Collection 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).
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"Net Investment Loss" shall mean, with respect to any Investment
Account for any Collection Period, the amount by which the aggregate of all
losses, if any, incurred during such Collection 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 Collection
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 XX Xxxx 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 XX
Xxxx REO Property, the affected XX Xxxx Non-Trust Mortgage Loan Noteholders.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean any P&I Advance previously
made or proposed to be made in respect of any Trust Mortgage Loan or REO Trust
Mortgage Loan by the Master Servicer, the Trustee or the Fiscal Agent hereunder,
which P&I Advance such party has determined in its reasonable, good faith
judgment, will not be ultimately recoverable from late payments, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds, or any other recovery
on or in respect of such Trust Mortgage Loan or REO Trust Mortgage Loan, as the
case may be.
"Nonrecoverable Servicing Advance" shall mean any Servicing Advance
previously made or proposed to be made in respect of any Serviced Mortgage Loan
or Administered REO Property by the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, which Servicing Advance such party has determined,
in its reasonable, good faith judgment, will not be ultimately recoverable from
late payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds,
or any other recovery on or in respect of such Mortgage Loan or 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 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, Class R-III, Class R-LR and Class V Certificates are
Non-Registered Certificates.
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"Non-Trust Mortgage Loan" shall mean the Sangertown Square Non-Trust
Mortgage Loan or any XX Xxxx Non-Trust Mortgage Loan, as applicable.
"Non-Trust Mortgage Loan Noteholder" shall mean the Sangertown Square
Non-Trust Mortgage Loan Noteholder or any XX Xxxx 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
November 12, 2003, relating to the Class X-CL, Class X-CP, 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.
"Officer's Certificate" shall mean a certificate signed by a Servicing
Officer of the Master Servicer or the Special Servicer, as the case may be, or
by a Responsible Officer of the Trustee or the Fiscal Agent, as the case may be,
and shall mean with respect to any other Person, a certificate signed by any of
the Chairman of the Board, the Vice Chairman of the Board, the President, any
Vice President or Managing Director, an Assistant Vice President or any other
authorized officer (however denominated) or another officer customarily
performing functions similar to those performed by any of the above designated
officers or, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Opinion of Counsel" shall mean a written opinion of counsel, who may,
without limitation, be salaried counsel for the Depositor, the Master Servicer
or the Special Servicer, acceptable in form and delivered to the Trustee or any
other specified Person, as the case may be, except that any opinion of counsel
relating to (a) the qualification of REMIC I, REMIC II, REMIC III or the
Sangertown Square Loan REMIC as a REMIC, (b) compliance with the REMIC
Provisions, (c) qualification of the Grantor Trust as a grantor trust, (d)
whether any act or event would cause an Adverse REMIC Event or Adverse Grantor
Trust Event, as may be applicable, or (e) the resignation of the Master Servicer
or the Special Servicer pursuant to this Agreement, must be a written opinion of
Independent counsel acceptable to and delivered to the Trustee or any other
specified Person, as the case may be.
"Original Class Notional Amount" shall mean, with respect to either
Class of Interest Only Certificates, the initial Class Notional Amount thereof
as of the Closing Date, which shall equal $1,399,717,369, in the case of the
Class X-CL Certificates, and $1,207,723,000, 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.
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"P&I Advance" shall mean, as to any Trust Mortgage Loan or REO Trust
Mortgage Loan, any advance made by the Master Servicer, the Trustee or the
Fiscal Agent pursuant to Section 4.03.
"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates for any Interest
Accrual Period, 3.636% per annum;
(b) with respect to the Class A-2 Certificates for any Interest
Accrual Period, 4.207% per annum;
(c) with respect to the Class A-3 Certificates for any Interest
Accrual Period, 4.830% per annum;
(d) with respect to the Class A-4 Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) the Weighted
Average REMIC I Remittance Rate for such Interest Accrual Period and (ii)
5.124% per annum;
(e) with respect to the Class B Certificates for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period, and (ii) 5.178%
per annum;
(f) with respect to the Class C Certificates for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period, and (ii) 5.207%
per annum;
(g) with respect to the Class D Certificates for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period, and (ii) 5.237%
per annum;
(h) with respect to the Class E Certificates for any Interest Accrual
Period, an annual rate equal to the lesser of (i) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period, and (ii) 5.266%
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) 5.296%
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) 5.350%
per annum;
(k) with respect to the Class H, Class J and 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;
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(l) 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) 5.394% per annum;
(m) 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;
(n) 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;
(o) 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
(p) 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.
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"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 Serviced
Trust Mortgage Loan that is a Performing Serviced Mortgage Loan.
"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, such lower rating
as will not result in an Adverse Rating Event with respect to any
Class of Certificates, as evidenced in writing by such Rating
Agency). In addition, any such item by its terms must have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to
a single interest rate index plus a single fixed spread (if any),
and move proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized under
the laws of the United States or any state thereof (having
original maturities of not more than 365 days), the short term
obligations of which are rated in the highest rating category of
each of Xxxxx'x and 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, as evidenced in
writing by such Rating Agency). In addition, any such item by its
terms must have a predetermined fixed dollar amount of principal
due at maturity that cannot vary or change. Interest may either
be fixed or variable. If such interest is variable, interest must
be tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with that index;
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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, such lower rating as will not
result in an Adverse Rating Event with respect to any Class of
Certificates, as evidenced in writing by such Rating Agency). In
addition, such commercial paper by its terms must have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to
a single interest rate index plus a single fixed spread (if any),
and move proportionately with that index;
(v) units of money market funds rated in the highest applicable
rating category of each of Xxxxx'x and 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,
as evidenced in writing by such Rating Agency) and which seeks to
maintain a constant net asset value; and
(vi) any other obligation or security that (A) is acceptable to each
Rating Agency, evidence of which acceptability shall be (1) in
the case of either Rating Agency, evidenced in a writing by such
Rating Agency to the effect that that such obligation or security
will not result in an Adverse Rating Event with respect to any
Class of Certificates, or (2) otherwise evidenced in a writing by
each Rating Agency 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
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.
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"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" shall have the meaning assigned thereto in Section 5.02(c).
"Plurality Residual Interest Certificateholder" shall mean, as to any
taxable year of any REMIC Pool, the Holder of Certificates evidencing the
largest Percentage Interest in the related Class of Residual Interest
Certificates.
"Pool Custodial Account" shall mean the segregated account or accounts
created and maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Wachovia Bank, National Association [OR THE NAME OF ANY SUCCESSOR
MASTER SERVICER], as Master Servicer, on behalf of LaSalle Bank National
Association [OR THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the
registered holders of LB-UBS Commercial Mortgage Trust 2003-C8, Commercial
Mortgage Pass-Through Certificates, Series 2003-C8, 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 "Lennar Partners, Inc. [OR THE NAME OF ANY SUCCESSOR SPECIAL SERVICER],
as Special Servicer, on behalf of LaSalle Bank National Association [OR THE NAME
OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the registered holders of
LB-UBS Commercial Mortgage Trust 2003-C8, Commercial Mortgage Pass-Through
Certificates, Series 2003-C8, 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 Trust
Mortgage Loan is prepaid prior to stated maturity, except that it is assumed
that each ARD Trust 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 any 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 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 portion, if any, of the Adjusted Principal Distribution Amount for such
Distribution Date.
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"Prepayment Interest Excess" shall mean, with respect to any Trust
Mortgage Loan or Serviced Non-Trust Mortgage Loan that was subject to a
Principal Prepayment in full or in part made (or, if resulting from the
application of Insurance Proceeds or Condemnation Proceeds, any other early
recovery of principal received) after its Due Date in any Collection Period (or,
in the case of the Sangertown Square Trust Mortgage Loan, in any Sangertown
Square Collection Period), any payment of interest (net of related Master
Servicing Fees or, in the case of the Sangertown Square Trust Mortgage Loan, net
of any comparable fees payable with respect thereto under the Sangertown Square
Servicing Agreement) actually collected from the related Mortgagor or otherwise
and intended to cover interest accrued on such Principal Prepayment during the
period from and after such Due Date (exclusive, however, of any related
Prepayment 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).
"Prepayment Interest Shortfall" shall mean, with respect to any Trust
Mortgage Loan or Serviced Non-Trust Mortgage Loan that was subject to a
Principal Prepayment in full or in part made (or, if resulting from the
application of Insurance Proceeds or Condemnation Proceeds, any other early
recovery of principal received) prior to its Due Date in any Collection Period
(or, in the case of the Sangertown Square Trust Mortgage Loan, in any Sangertown
Square 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,
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 (exclusive of any portion of such
interest that, if received, would have otherwise been payable as related Master
Servicing Fees or, in the case of the Sangertown Square Trust Mortgage Loan, any
comparable fees payable with respect thereto under the Sangertown Square
Servicing Agreement).
"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 0000
Xxxxxxxx Xxxxx, XXX0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, and the Primary
Servicing Office of the Special Servicer is located at 0000 Xxxxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000.
"Prime Rate" shall mean the "prime rate" published in the "Money
Rates" section of The Wall Street Journal, as such "prime rate" may change from
time to time. If The Wall Street Journal ceases to publish the "prime rate",
then the Trustee shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Trustee shall select a comparable interest rate index. In either case,
such selection shall be made by the Trustee in its sole discretion and the
Trustee shall notify the Fiscal Agent, the Master Servicer, the Special Servicer
and each affected XX Xxxx Non-Trust Mortgage Loan Noteholder in writing of its
selection.
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"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;
(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; and
(g) the principal portion of any Xxxxxxxxxx Xxxxxx X&X Advance
Received by the Trust with respect to the Sangertown Square Trust Mortgage
Loan or any Sangertown Square REO Trust Mortgage Loan as of 12:00 noon (New
York City time) on the related Master Servicer Remittance Date and intended
to relate to the Monthly Payment due or deemed due in respect of the
Sangertown Square Trust Mortgage Loan or any Sangertown Square REO Trust
Mortgage Loan during the related Collection Period;
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provided that none of the amounts set forth in clauses (a) through (g) 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 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 September 23, 2003, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement dated
November 12, 2003, relating to the Registered Certificates.
"Purchase Option Holders" shall have the meaning assigned thereto in
Section 3.18(b).
"Purchase Price" shall mean, with respect to any Trust Mortgage Loan
(or REO Property or, in the case of any Sangertown Square REO Property, the
Trust's interest therein), a cash price equal to the aggregate of: (a) the
outstanding principal balance of such Trust Mortgage Loan (or, in the case of an
REO Property, the related REO Trust Mortgage Loan) as of the date of purchase,
(b) all accrued and unpaid interest on such Trust Mortgage Loan (or, in the case
of an REO Property, the related REO Trust Mortgage Loan) to, but not including,
the Due Date in the 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, in addition to the amount of any
Servicing Advance 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
Resolution Extension Period for any Material Document Defect or Material Breach,
as applicable, that may have given 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
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Person to purchase such Mortgage Loan; provided that, in the case of a XX Xxxx
Trust Mortgage Loan, the Purchase Price calculated above shall be reduced by any
related unpaid Master Servicing Fees, unreimbursed Advances and, 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 XX Xxxx Co-Lender Agreement or any successor servicing
agreement to the Master Servicer in respect of the XX Xxxx 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 XX Xxxx Loan Pair, the
Purchase Price for such REO Property shall instead equal the greater of (x) the
fair market value of such REO Property, based on a recent appraisal meeting the
criteria for a Required Appraisal, and (y) the aggregate of the amounts
described in clauses (a), (b), (c), (d) and, if applicable, (e) above with
respect to both REO Mortgage Loans comprising the related XX Xxxx Loan Pair.
"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
November 2027; (b) with respect to the Class A-4 Certificates, the Distribution
Date in November 2032; and (c) with respect to the other Classes of Principal
Balance Certificates (exclusive of the Class T Certificates), the Distribution
Date in September 2037.
"Rating Agency" shall mean each of Xxxxx'x and S&P.
"Realized Loss" shall mean:
(1) with respect to each Trust Mortgage Loan as to which a Final
Recovery Determination has been made, or with respect to any successor REO
Trust 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 Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be,
as of the commencement of the 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 Trust Mortgage Loan or such REO Trust Mortgage Loan, as
the case may be, to but not including the Due Date in the 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 Trust 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 Trust Mortgage Loan or, to the extent allocable
to such REO Trust Mortgage Loan, the related REO Property, as the case may
be, during the 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 Trust Mortgage Loan or REO Trust Mortgage Loan; provided that, in the
case of the Sangertown Square Trust Mortgage
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Loan or any Sangertown Square REO Trust Mortgage Loan, references to
"Collection Period" in this clause (1) shall mean the "Sangertown Square
Collection Period";
(2) with respect to each Trust Mortgage Loan as to which any portion
of the principal or previously accrued interest payable thereunder was
canceled in connection with a bankruptcy or similar proceeding involving
the related Mortgagor or a modification, extension, waiver or amendment of
such Trust Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20 (or, in the case of the Sangertown Square Trust
Mortgage Loan, by the applicable Sangertown Square Servicer pursuant to the
Sangertown Square Servicing Agreement), the amount of such principal and/or
interest (other than Default Interest and, in the case of an ARD Mortgage
Loan after its Anticipated Repayment Date, Additional Interest) so
canceled;
(3) with respect to each Trust Mortgage Loan 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 Trust
Mortgage Loan granted or agreed to by the Special Servicer pursuant to
Section 3.20 (or, in the case of the Sangertown Square Trust Mortgage Loan,
by the applicable Sangertown Square Servicer pursuant to the Sangertown
Square 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, for purposes of Section 4.04, 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 Sangertown
Square Trust Mortgage Loan or any Sangertown Square REO Property, received by
the Trustee, or by the Master Servicer on behalf of the Trustee, as holder of
the Mortgage Note for the Sangertown Square Trust Mortgage Loan, on behalf of
the Trust; and (b) in the case of any other Trust Mortgage Loan or REO Property,
received by the Master Servicer or any of its Sub-Servicers, the Special
Servicer or any of its Sub-Servicers or the Trustee, as the case may be, in any
event on behalf of the Trust.
"Record Date" shall mean, with respect to any Distribution Date, the
last Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Recording/Filing Agent" shall have the meaning assigned thereto in
Section 2.01(c).
"Recovered Amount" shall have the meaning assigned thereto in Section
1.03(c).
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"Reference Rate" shall mean, with respect to any Interest Accrual
Period, the applicable rate per annum set forth on the Reference Rate Schedule.
"Reference Rate Schedule" shall mean the list of Reference Rates set
forth on the schedule attached hereto as Schedule V.
"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 and Class D
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 Loan
REMIC Regular Interests; (ii) the Trust Mortgage Loans as from time to time are
subject to this Agreement (exclusive of the Sangertown Square Trust Mortgage
Loan) and all payments under and proceeds of such Trust Mortgage Loans Received
by the Trust after the Closing Date (other than any such payments and/or
proceeds that represent (A) scheduled payments of interest and principal due in
respect of the Trust Mortgage Loans on or before the Cut-off Date or (B)
Additional Interest Received by the Trust in respect of the ARD Trust Mortgage
Loans after their respective Anticipated Repayment Dates), together with all
documents included in the related Mortgage Files;
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(iii) any Administered REO Properties as from time to time are subject to this
Agreement and all income and proceeds therefrom; (iv) 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 such funds or assets that are included in the Sangertown Square
Loan REMIC or that represent Additional Interest Received by the Trust in
respect of the ARD Trust Mortgage Loans after their respective Anticipated
Repayment Dates; and (v) the rights of the Depositor under the UBS/Depositor
Mortgage Loan Purchase Agreement; provided that REMIC I shall not include the XX
Xxxx Non-Trust Mortgage Loans, or any payments or other collections of
principal, interest, Prepayment Premiums, Yield Maintenance Charges or other
amounts received by or on behalf of the Trust on any of the XX Xxxx 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 Trust Mortgage Loan
(other than the Sangertown Square 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 any REMIC I Regular Interest that, as
of the Closing Date, corresponds to the Sangertown Square Trust Mortgage Loan, a
rate per annum that is, for any Interest Accrual Period, equal to the Weighted
Average Loan REMIC Remittance Rate for such Interest Accrual Period.
"REMIC II" shall mean the segregated pool of assets consisting of all
of the REMIC I Regular Interests conveyed in trust to the Trustee for the
benefit of REMIC III, as holder of the REMIC II Regular Interests, and the
Holders of the Class R-II Certificates, pursuant to Section 2.09, with respect
to which a separate REMIC election is to be made.
"REMIC II Principal Reinstatement Amount" shall have the meaning
assigned thereto pursuant to Section 4.05(c).
"REMIC II Regular Interest" shall mean any of the 28 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 the REMIC II Remittance Rate in effect from
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time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto. The designations for the respective REMIC II Regular Interests are set
forth in the Preliminary Statement hereto.
"REMIC II Remittance Rate" shall mean, with respect to 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 2.11,
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
28 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-3-1; REMIC III Component X-CL-A-3-2; REMIC III Component
X-CL-A-3-3; 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-1; REMIC III Component X-CL-D-2; REMIC III Component X-CL-E; REMIC
III Component X-CL-F; REMIC III Component X-CL-G-1; REMIC III Component
X-CL-G-2; REMIC III Component X-CL-H; 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
17 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-3-1; REMIC III
Component X-CP-A-3-2; REMIC III Component X-CP-A-3-3; REMIC III Component
X-CP-A-4-1; and 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-1; REMIC III
Component X-CP-D-2; REMIC III Component X-CP-E; REMIC III Component X-CP-F;
REMIC III Component X-CP-G-1 and REMIC III Component X-CP-G-2; 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.
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"REMIC Pool" shall mean any of REMIC I, REMIC II, REMIC III and the
Sangertown Square Loan REMIC.
"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 either the Pool REO Account or the XX Xxxx
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 Sangertown Square REO Property,
pursuant to the Sangertown Square Servicing Agreement).
"REO Disposition" shall mean the sale or other disposition of any REO
Property pursuant to Section 3.18 (or, in the case of any Sangertown Square REO
Property, pursuant to the Sangertown Square 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 Loan Pair
is involved, either of the two mortgage loans comprising such Loan Pair) 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 Loan Pair, one of the two
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 Pair, on
behalf of the related Non-Trust Mortgage Loan Noteholder). 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.
All amounts payable or reimbursable to the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent in respect of the predecessor Mortgage
Loan (assuming that such Mortgage Loan is a Trust Mortgage Loan or a Serviced
Non-Trust Mortgage Loan) as of the date of the related REO Acquisition,
including any unpaid Servicing Fees and any unreimbursed Servicing Advances and
P&I Advances, together with any interest accrued and payable to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent in respect of
such Servicing Advances and P&I
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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 the 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 XX Xxxx Mortgaged Property, for the benefit of the Certificateholders
and the affected XX Xxxx Non-Trust Mortgage Loan Noteholders, 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 Trust Mortgage Loan or a Loan Pair; provided that the
Sangertown Square Mortgaged Property shall constitute an REO Property if
acquired under the Sangertown Square Servicing Agreement for the benefit of the
Sangertown Square Non-Trust Mortgage Loan Noteholder 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 Sangertown Square Loan Pair.
"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. Amounts Received by the Trust with respect
to each REO Trust Mortgage Loan (after provision for amounts to be applied to
the payment of, or to be reimbursed to the Master Servicer or the Special
Servicer for the payment of, the costs of operating, managing and maintaining
the related REO Property (other than in the case of a Sangertown Square REO
Property) or for the reimbursement of the Master Servicer or the Special
Servicer for other related Servicing Advances, if any) shall be treated: first,
as a recovery of accrued and unpaid interest on such REO Trust Mortgage Loan at
the related Mortgage Rate to but not including the Due Date in the Collection
Period of receipt (exclusive, however, in the case of an REO Trust Mortgage Loan
that relates to an ARD Trust 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 Trust 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
due and owing in respect of such REO Trust Mortgage Loan (exclusive, however, in
the case of an REO Trust Mortgage Loan that relates to an ARD Trust 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 Trust Mortgage Loan that relates to an ARD Trust Mortgage Loan after its
Anticipated Repayment Date, as a recovery of accrued and unpaid Additional
Interest on such REO Trust Mortgage Loan; provided that, if one or more Advances
previously made in respect of an REO Trust Mortgage Loan have been reimbursed
out of general collections 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, and (iii)
in accordance with clauses first through
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fourth of this sentence (taking into account the applications pursuant to
clauses (i) and (ii) of this proviso); and provided, further, that if the XX
Xxxx Mortgage Loans 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 XX Xxxx Co-Lender Agreement; and
provided, further, that if the Sangertown Square Trust Mortgage Loan becomes an
REO Trust Mortgage Loan, amounts Received by the Trust with respect to such REO
Trust Mortgage Loan shall be allocated among interest, principal, Additional
Interest and/or prepayment consideration due or deemed due in respect of such
REO Trust Mortgage Loan in accordance with the terms of any distribution date
statement or servicer report received from the Sangertown Square Servicers with
respect to such REO Trust Mortgage Loan and, in the absence of any such
statement or report, in accordance with Section 4.01 of the Sangertown Square
Co-Lender and Servicing Agreement.
"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 Trust Mortgage Loan
(i) that becomes a Modified Loan, (ii) that is 60 days or more delinquent in
respect of any Monthly Payment, except for a Balloon Payment, (iii) that is
delinquent in respect of its Balloon Payment, if any, (A) for one (1) Business
Day (unless clause (B) below applies), or (B) if the related Mortgagor had
delivered a refinancing commitment acceptable to the Special Servicer prior to
the date the subject Balloon Payment was due, for 30 days (or for such shorter
period ending on the date on which it is determined that the refinancing could
not reasonably be expected to occur), (iv) with respect to which the related
Mortgaged Property has become an REO Property, (v) with respect to which a
receiver or similar official is appointed and continues for 60 days in such
capacity in respect of the related Mortgaged Property, (vi) with respect to
which the related Mortgagor is subject to a bankruptcy, insolvency or similar
proceedings, which, in the case of an involuntary bankruptcy, insolvency or
similar proceeding, has not been dismissed within 60 days of the commencement
thereof, or (vii) that remains outstanding five years following any extension of
its maturity date pursuant to Section 3.20. Any Required Appraisal Loan shall
cease to be such at such time as it has become a Corrected Trust Mortgage Loan
(except if such Required Appraisal Loan had not become a Specially Serviced
Trust Mortgage Loan at the time the applicable event(s) described in any of
clauses (i) through (vii) above 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 has occurred with respect thereto during the
preceding three-month period. The term "Required Appraisal Loan" shall include
any successor REO Trust Mortgage Loan in respect of a Serviced Trust Mortgage
Loan. In addition, notwithstanding anything to the contrary above in this
definition, a XX Xxxx Trust Mortgage Loan shall also be and remain a Required
Appraisal Loan if, and
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for so long as, the corresponding XX Xxxx Non-Trust Mortgage Loan in the same XX
Xxxx Loan Pair would, if it were a Trust Mortgage Loan, constitute a Required
Appraisal Loan.
"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, 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 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-LR, Class R-I,
Class R-II or Class R-III Certificate.
"Resolution Extension Period" shall have the meaning assigned thereto
in Section 2.03(a).
"Responsible Officer" shall mean: (a) when used with respect to the
Trustee, any Vice President, any Assistant Vice President, any Trust Officer,
any Assistant Secretary or any other officer of the Trustee's 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 the Fiscal
Agent, any officer thereof.
"Review Package" shall mean a package of documents consisting of a
memorandum outlining the analysis and recommendation (in accordance with the
Servicing Standard) of the Master Servicer or the Special Servicer, as the case
may be, with respect to the matters that are the subject thereof, and copies of
all relevant documentation.
"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.
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"S&P" shall mean Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest. If neither such rating
agency nor any successor remains in existence, "S&P" shall be deemed to refer to
such other nationally recognized statistical rating agency or other comparable
Person designated by the Depositor, notice of which designation shall be given
to the Trustee, the Fiscal Agent, the Master Servicer and the Special Servicer,
and specific ratings of Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Sangertown Square Appraisal Reduction Amount" shall mean any
"Appraisal Reduction Amount" under, and within the meaning of, the Sangertown
Square Servicing Agreement that exists with respect to the Sangertown Square
Loan Pair.
"Sangertown Square Co-Lender and Servicing Agreement" shall have the
meaning assigned thereto in the Preliminary Statement.
"Sangertown Square Collection Period" shall mean, with respect to any
Distribution Date or Master Servicer Remittance Date, the applicable "Collection
Period" in respect of the Sangertown Square Loan Pair under the Sangertown
Square Servicing Agreement ending in the calendar month in which such
Distribution Date or Master Servicer Remittance Date, as the case may be,
occurs.
"Sangertown Square Event of Default" shall mean an "Event of Default"
under, and within the meaning of, the Sangertown Square Servicing Agreement that
materially and adversely affects the Trustee, in its capacity as holder of the
Sangertown Square Trust Mortgage Loan, or the interests of the
Certificateholders.
"Sangertown Square Loan Component" shall have the meaning assigned
thereto in the Preliminary Statement; provided that Sangertown Square Loan
Components shall continue to exist with respect to any Sangertown Square REO
Trust Mortgage Loan in accordance with the terms of the related loan documents
and without regard to the fact that the Sangertown Square Mortgaged Property has
become an REO Property.
"Sangertown Square Loan Pair" shall have the meaning assigned thereto
in the Preliminary Statement, and shall be deemed to refer to the Sangertown
Square Trust Mortgage Loan and the Sangertown Square Non-Trust Mortgage Loan
(both of which shall be deemed to remain outstanding) notwithstanding that the
Sangertown Square Mortgaged Property becomes an REO Property.
"Sangertown Square Loan REMIC" shall mean the segregated pool of
assets, as to which a separate REMIC election is to be made, consisting of: (i)
the Sangertown Square Trust Mortgage Loan (for so long as it is subject to this
Agreement) and all payments under and proceeds of such Trust Mortgage Loan
received by or on behalf of the Trust after the Closing Date (other than any
such payments and/or proceeds that represent (A) scheduled payments of interest
and principal due on or before the Cut-off Date or (B) Additional Interest
received by or on behalf of the Trust in respect of such Trust Mortgage Loan
after its Anticipated Repayment Date), together with all documents included in
the related Mortgage File; (ii) the Trust's interest in any Sangertown Square
REO Property (for so long as an interest therein is part of the Trust Fund) and
all income and proceeds therefrom; and (iii) such funds or assets as from time
to time are deposited in the Pool Custodial Account, the Collection Account and
the Interest Reserve Account with respect to such Trust Mortgage Loan or any
successor REO Trust
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Mortgage Loan with respect thereto, exclusive of any amounts that represent
Additional Interest received by or on behalf of the Trust in respect of such
Trust Mortgage Loan or any successor REO Trust Mortgage Loan with respect
thereto after its Anticipated Repayment Date, if any.
"Sangertown Square Master Servicer" shall mean the master servicer
under the Sangertown Square Servicing Agreement.
"Sangertown Square Mortgaged Property" shall have the meaning assigned
thereto in the Preliminary Statement.
"Sangertown Square Non-Trust Mortgage Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Sangertown Square Non-Trust Mortgage Loan Noteholder" shall mean the
holder of the Mortgage Note for the Sangertown Square Non-Trust Mortgage Loan.
"Sangertown Square Noteholders" shall mean, collectively, the holder
of the Mortgage Note for the Sangertown Square Trust Mortgage Loan, together
with the Sangertown Square Non-Trust Mortgage Loan Noteholder.
"Sangertown Square P&I Advance" shall mean any delinquency advance
comparable to a P&I Advance that is made by the Sangertown Square Master
Servicer with respect to the Sangertown Square Trust Mortgage Loan or any
Sangertown Square REO Trust Mortgage Loan (or, to the extent allocable to the
Sangertown Square Trust Mortgage Loan or any Sangertown Square REO Trust
Mortgage Loan, with respect to the Sangertown Square Loan Pair) under the
Sangertown Square Servicing Agreement.
"Sangertown Square REO Non-Trust Mortgage Loan" shall mean any REO
Mortgage Loan relating to the Sangertown Square Non-Trust Mortgage Loan.
"Sangertown Square REO Mortgage Loan" shall mean either the Sangertown
Square REO Trust Mortgage Loan or the Sangertown Square REO Non-Trust Mortgage
Loan, as applicable.
"Sangertown Square REO Trust Mortgage Loan" shall mean any REO Trust
Mortgage Loan relating to the Sangertown Square Trust Mortgage Loan.
"Sangertown Square REO Property" shall mean the Sangertown Square
Mortgaged Properties at such time that its becomes an "REO Property" under the
Sangertown Square Servicing Agreement.
"Sangertown Square Servicer" shall mean either the Sangertown Square
Master Servicer or the Sangertown Square Special Servicer, as applicable.
"Sangertown Square Servicing Agreement" shall mean, as of any date of
determination, either the Series 2000-C3 Pooling and Servicing Agreement or the
Sangertown Square Co-Lender and Servicing Agreement, whichever then governs the
servicing and administration of the Sangertown Square Loan Pair or any related
REO Property, consistent with Section 3.01 of the Sangertown Square Co-Lender
and Servicing Agreement.
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"Sangertown Square Special Servicer" shall mean the special servicer
under the Sangertown Square Servicing Agreement.
"Sangertown Square Trustee" shall mean the trustee under the Series
2000-C3 Pooling and Servicing Agreement.
"Sangertown Square 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 23 and is, together
with the Sangertown Square Non-Trust Mortgage Loan, secured by a Mortgage on the
Sangertown Square Mortgaged Property.
"Xxxxxxxx-Xxxxx Act" shall have the meaning assigned thereto in
Section 8.15(d).
"Xxxxxxxx-Xxxxx Certification" shall have the meaning assigned thereto
in Section 8.15(d).
"SASCO II" shall mean Structured Asset Securities Corporation II or
any successor in interest.
"Scheduled Payment" shall mean, with respect to any 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 a Mortgage Loan in the
Sangertown Square Loan Pair, by the applicable Sangertown Square Servicer
pursuant to the Sangertown Square 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 to the UBS Mortgage Loan Seller
(in the case of a UBS Trust Mortgage Loan) and 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
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the UBS/Depositor Mortgage Loan Purchase Agreement (in the case of a UBS
Trust Mortgage Loan), as applicable;
(iii) following or simultaneously with the occurrence of a Material
Document Defect, the existence or occurrence of a Servicing Transfer Event
with respect to the subject Trust Mortgage Loan;
(iv) following or simultaneously with the occurrence of a Material
Document Defect, the existence or occurrence of an assumption or a proposed
assumption with respect to the subject Trust Mortgage Loan;
(v) only (A) under the circumstances contemplated by the last
paragraph of Section 2.03(a) (in the case of a Xxxxxx Trust Mortgage Loan)
or Section 5(a) of the UBS/Depositor Mortgage Loan Purchase Agreement (in
the case of a UBS Trust Mortgage Loan), as applicable, and (B) following
the expiration of the applicable Resolution Extension Period and (C)
following either the occurrence of a Servicing Transfer Event or an
assumption with respect to the subject Trust Mortgage Loan, as applicable,
the direction to cure the subject Material Document Defect 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.
"Series 2000-C3 Certificates" shall have the meaning assigned thereto
in the Preliminary Statement.
"Series 2000-C3 Pooling and Servicing Agreement" shall have the
meaning assigned thereto in the Preliminary Statement.
"Series 2000-C3 Securitization" shall have the meaning assigned
thereto in the Preliminary Statement.
"Serviced Mortgage Loan" shall mean each Mortgage Loan (including a
Specially Serviced Mortgage Loan, but excluding an REO Mortgage Loan), other
than the Mortgage Loans comprising the Sangertown Square Loan Pair.
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"Serviced Non-Trust Mortgage Loan" shall mean each Non-Trust Mortgage
Loan that is a Serviced Mortgage Loan. Notwithstanding anything herein to the
contrary, the Sangertown Square Non-Trust Mortgage Loan shall in no event
constitute a Serviced Non-Trust Mortgage Loan hereunder.
"Serviced Trust Mortgage Loan" shall mean any Trust Mortgage Loan that
is a Serviced Mortgage Loan. Notwithstanding anything herein to the contrary,
the Sangertown Square Trust Mortgage Loan shall in no event constitute a
Serviced Trust Mortgage Loan hereunder.
"Servicer Fee Amount" shall mean: (a) with respect to each
Sub-Servicer, as of any date of determination, the aggregate of the products
obtained by multiplying, for each Serviced Mortgage Loan primary serviced by
such Sub-Servicer, (i) the principal balance of such Mortgage Loan as of the end
of the immediately preceding Collection Period and (ii) the sub-servicing fee
rate specified in the related Sub-Servicing Agreement for such Mortgage Loan;
and (b) with respect to the Master Servicer, as of any date of determination,
the aggregate of the products obtained by multiplying, for each Serviced
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), (i)
the principal balance of such Mortgage Loan as of the end of the immediately
preceding Collection Period and (ii) the excess, if any, of the Master Servicing
Fee Rate for such Mortgage Loan, over the sub-servicing fee rate (if any)
applicable to such Mortgage Loan, as specified in any Sub-Servicing Agreement
related to such Mortgage Loan.
"Servicer Reports" shall mean each of the files and reports comprising
the CMSA Investor Reporting Package (excluding the CMSA Bond Level File and the
CMSA Collateral Summary File) and the Supplemental Report.
"Servicing Account" shall have the meaning assigned thereto in Section
3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out of pocket" costs and expenses (including attorneys' fees and fees
and expenses of real estate brokers) incurred by the Master Servicer, the
Special Servicer, the Fiscal Agent or the Trustee in connection with the
servicing and administration of a Serviced Mortgage Loan, if a default is
imminent thereunder or a default, delinquency or other unanticipated event has
occurred with respect thereto, or in connection with the administration of any
Administered REO Property, including, but not limited to, the cost of (a)
compliance with the obligations of the Master Servicer, the Special Servicer,
the Fiscal Agent or the Trustee, if any, set forth in Section 3.03(c), (b) the
preservation, insurance, restoration, protection and management of a Mortgaged
Property, (c) obtaining any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds, (d) any enforcement or judicial proceedings with respect
to a Mortgaged Property, including foreclosures, (e) any Required Appraisal or
any other appraisal or update thereof expressly permitted or required to be
obtained hereunder, (f) the operation, management, maintenance and liquidation
of any REO Property, and (g) obtaining any related ratings confirmation;
provided that, notwithstanding anything to the contrary, "Servicing Advances"
shall not include allocable overhead of the Master Servicer, the Special
Servicer or the Trustee, such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses, or costs and expenses incurred by any such
party in connection with its purchase of any Mortgage Loan or REO Property
pursuant to any provision of this Agreement, a XX Xxxx Co-Lender Agreement, the
Sangertown Square Co-Lender and Servicing Agreement or the Sangertown Square
Servicing Agreement.
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"Servicing Fees" shall mean, with respect to each Serviced Mortgage
Loan (and any successor REO Mortgage Loan with respect thereto), the Master
Servicing Fee and the Special Servicing Fee. There shall be no Servicing Fees
hereunder with respect to the Sangertown Square Loan Pair.
"Servicing File" shall mean, collectively, any and all documents
(other than documents required to be part of the related Mortgage File) 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, escrow agreements, property
management agreements and franchise agreements and copies of the Mortgage Notes
for the XX Xxxx Non-Trust Mortgage Loans.
"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 intercreditor 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 XX Xxxx Loan Pair is
involved, the maximization of recovery on such XX Xxxx Loan Pair to the
Certificateholders and the related XX Xxxx Non-Trust Mortgage Loan Noteholder
(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, in the case of a XX
Xxxx Loan Pair, to the Certificateholders and the related XX Xxxx Non-Trust
Mortgage Loan Noteholder) to be performed at the related Mortgage
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Rate(s)); and (iii) without regard to (A) any relationship, including as lender
on any other debt (including mezzanine debt), 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 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.
"Special Servicer" shall mean (subject to Section 7.01(d)) Lennar, 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 Trust Mortgage Loan and each REO Mortgage Loan that relates to an
Administered REO Property, the fee designated as such in, and payable to the
Special Servicer pursuant to, Section 3.11(c).
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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 Serviced Mortgage Loan" shall mean any Serviced Mortgage
Loan as to which any of the following events has occurred:
(a) the related Mortgagor (or any related guarantor) has failed to
make when due any Monthly Payment (including a Balloon Payment), which
failure continues, or the Master Servicer determines, in its reasonable,
good faith judgment, will continue, unremedied (including, in the case of
any Mortgage Loan in the XX Xxxx Loan Group, by a party exercising XX Xxxx
Cure Rights) (without regard to any grace period) (i) except in the case of
a Balloon Mortgage Loan delinquent in respect of its Balloon Payment, for
60 days beyond the date on which the subject payment was due, or (ii)
solely in the case of a delinquent Balloon Payment, (A) for one (1)
Business Day beyond the date on which the subject Balloon Payment was due
(unless clause (B) below applies) or (B) in the case of a Balloon Mortgage
Loan as to which the related Mortgagor shall have delivered a refinancing
commitment acceptable to the Special Servicer prior to the date the subject
Balloon Payment was due, for 30 days beyond the date on which the subject
Balloon Payment was due (or for such shorter period ending on the date on
which it is determined that the refinancing could not reasonably be
expected to occur);
(b) the Master Servicer or, subject to Section 6.11 and 6.11A, 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) for at least the applicable
period contemplated by clause (a) of this definition; 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 any XX Xxxx
Non-Trust Mortgage Loan, the related Non-Trust Mortgage Loan Noteholder);
provided that any default requiring a Servicing Advance shall be deemed to
materially and adversely affect the interests of Certificateholders; (ii)
continues unremedied (including, in the case of any Mortgage Loan in the XX
Xxxx Loan Group, by a party exercising XX Xxxx 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 (I) the applicable grace period under the terms of such Serviced
Mortgage Loan (plus, solely in the case of any Mortgage Loan in the XX Xxxx
Loan Group, if applicable, the applicable cure period for exercising XX
Xxxx Cure Rights under the terms of the XX Xxxx Co-Lender Agreement) and
(II) 30 days; 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
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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 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 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 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
either Mortgage Loan that is part of a XX Xxxx Loan Pair becomes a Specially
Serviced Mortgage Loan, then the other Mortgage Loan in such XX Xxxx Loan Pair
shall also
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become a Specially Serviced Mortgage Loan; provided that if a XX Xxxx Non-Trust
Mortgage Loan Noteholder prevents the occurrence of a Servicing Transfer Event
with respect to the XX Xxxx Trust Mortgage Loans through the exercise of XX Xxxx
Cure Rights with respect to such XX Xxxx Trust Mortgage Loans, then the
existence of such Servicing Transfer Event with respect to the XX Xxxx Non-Trust
Mortgage Loans (because XX Xxxx Cure Rights do not include the cure of defaults
under the XX Xxxx Non-Trust Mortgage Loans) will not, in and of itself, result
in any of the Mortgage Loans in the XX Xxxx Loan Group becoming a Specially
Serviced Mortgage Loan unless a separate Servicing Transfer Event has occurred
with respect thereto.
Neither Mortgage Loan comprising the Sangertown Square Loan Pair 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 pursuant to Section 3.20 (or, in the case of either Mortgage Loan
comprising the Sangertown Square Loan Pair, by a Sangertown Square Servicer
pursuant to the Sangertown Square 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) 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 related Collection Period (or, in the case of the
Sangertown Square Trust Mortgage Loan or any Sangertown Square REO Trust
Mortgage Loan, during the related Sangertown Square Collection Period); and (b)
with respect to any XX Xxxx Non-Trust Mortgage Loan (and any successor REO
Mortgage Loan with respect thereto), the Cut-off Date Balance of such XX Xxxx
Non-Trust Mortgage Loan, as permanently reduced from time to time (to not less
than zero) by (i) any principal amounts received in respect of such XX Xxxx
Non-Trust Mortgage Loan (or any such successor REO Mortgage Loan with respect
thereto) and (ii) the principal portion of any Realized Loss incurred in respect
of such XX Xxxx Non-Trust Mortgage Loan (or any such successor REO Mortgage Loan
with respect thereto). Notwithstanding the foregoing, if a Liquidation Event
occurs in respect of any Serviced Mortgage Loan, the Sangertown Square Trust
Mortgage Loan or any successor REO Mortgage Loan with respect to the foregoing,
then the "Stated Principal Balance" of such Mortgage Loan or REO Mortgage Loan,
as the case may be, shall be zero commencing as of the Distribution Date in the
Collection Period next following the Collection Period in which such
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Liquidation Event occurred; provided that, in the case of the Sangertown Square
Trust Mortgage Loan or any Sangertown Square REO Trust Mortgage Loan, if the
subject Liquidation Event is a Final Recovery Determination made by the
Sangertown Square 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 "Sangertown Square
Collection Period". "Stated Principal Balance" shall mean, with respect to any
Sangertown Square Loan Component, the portion of the Stated Principal Balance of
the Sangertown Square Trust Mortgage Loan or any Sangertown Square REO Trust
Mortgage Loan that is allocable to such Sangertown Square Loan Component.
"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, Class R-III or Class
R-LR Certificate.
"Sub-Servicer" shall mean any Person with which the Master Servicer or
the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean the written contract between the
Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer,
on the other hand, relating to servicing and administration of Serviced Mortgage
Loans as provided in Section 3.22.
"Subsequent Exchange Act Reports" shall have the meaning assigned
thereto in Section 8.15(a).
"Successful Bidder" shall have the meaning assigned thereto in Section
7.01(c).
"Supplemental Report" shall mean have the meaning assigned thereto in
Section 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 a REMIC
under the REMIC Provisions, and the federal income tax return to be filed on
behalf of the Grantor Trust due to its classification as a grantor trust under
the Grantor Trust Provisions, together with any and all other information,
reports or returns that may be required to be furnished to the
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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 least of:
(1) the Additional Principal Distribution Amount for the subject Distribution
Date; (2) 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 such
Distribution Date, but prior to any adjustments to any of those Classes of
Principal Balance Certificates pursuant to Section 4.04 or Section 4.05); and
(3) the aggregate Loss Reimbursement Amount in respect of the Principal Balance
Certificates for the subject Distribution Date (reduced by all distributions
made with respect to the Principal Balance Certificates in reimbursement of such
aggregate Loss Reimbursement Amount on the subject Distribution Date).
"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 Fund" shall mean, collectively, all of the assets of REMIC I,
REMIC II, REMIC III and the Grantor Trust.
"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;
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(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 Trust 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 LaSalle, in its capacity as trustee hereunder, or
any successor trustee appointed as herein provided.
"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 0.00157% 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 November 12, 2003, 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.
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"UBS Trust Mortgage Loan" shall mean any Trust Mortgage Loan
transferred by the UBS Mortgage Loan Seller to the Depositor, pursuant to the
UBS/Depositor Mortgage Loan Purchase Agreement.
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement executed
(if required by the UCC) and filed pursuant to the UCC.
"Uncertificated Accrued Interest" shall mean the interest accrued from
time to time with respect to any Loan REMIC Regular Interest, REMIC I Regular
Interest or REMIC II Regular Interest, the amount of which interest shall equal:
(a) in the case of any Loan REMIC Regular Interest for any Interest Accrual
Period, one-twelfth of the product of (i) the Loan REMIC Remittance Rate
applicable to such Loan REMIC Regular Interest for such Interest Accrual Period,
multiplied by (ii) the Uncertificated Principal Balance of such Loan REMIC
Regular Interest outstanding immediately prior to the related Distribution Date;
(b) in the case of any REMIC I Regular Interest for any Interest Accrual Period,
one-twelfth of the product of (i) the REMIC I Remittance Rate applicable to such
REMIC I Regular Interest for such Interest Accrual Period, multiplied by (ii)
the Uncertificated Principal Balance of such REMIC I Regular Interest
outstanding immediately prior to the related Distribution Date; and (c) in the
case of any REMIC II Regular Interest for any Interest Accrual Period,
one-twelfth of the product of (i) the 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.
"Uncertificated Distributable Interest" shall mean: (a) with respect
to any Loan REMIC Regular Interest for any Distribution Date, an amount of
interest equal to the amount of Uncertificated Accrued Interest in respect of
the subject Loan REMIC Regular Interest for the related Interest Accrual Period,
reduced (to not less than zero) by the product of (i) that portion, if any, of
any Net Aggregate Prepayment Interest Shortfall for such Distribution Date that
is attributable to the Sangertown Square Trust Mortgage Loan, multiplied by (ii)
a fraction, the numerator of which is the amount of Uncertificated Accrued
Interest in respect of the subject Loan REMIC 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 Loan REMIC Regular
Interests for the related Interest Accrual Period; (b) with respect to any REMIC
I Regular Interest for any Distribution Date, an amount of interest equal to the
amount of Uncertificated Accrued Interest in respect of the subject REMIC I
Regular Interest for the related Interest Accrual Period, reduced (to not less
than zero) by the product of (i) any Net Aggregate Prepayment Interest Shortfall
for such Distribution Date, multiplied by (ii) a fraction, the numerator of
which is the amount of Uncertificated Accrued Interest in respect of the subject
REMIC I Regular Interest for the related Interest Accrual Period, and the
denominator of which is the aggregate amount of Uncertificated Accrued Interest
in respect of all the REMIC I Regular Interests for the related Interest Accrual
Period; and (c) with respect to any REMIC II Regular Interest for any
Distribution Date, subject to Section 4.05(d), 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
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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 Loan REMIC Regular Interest, REMIC I Regular Interest or REMIC II Regular
Interest outstanding as of any date of determination. As of the Closing Date:
(a) the Uncertificated Principal Balance of Loan REMIC Regular Interest SS-1
shall equal $1,775,000; (b) the Uncertificated Principal Balance of Loan REMIC
Regular Interest SS-2 shall equal $5,925,000; (c) the Uncertificated Principal
Balance of Loan REMIC Regular Interest SS-3 shall equal $2,200,000; (d) the
Uncertificated Principal Balance of Loan REMIC Regular Interest SS-4 shall equal
$4,233,832; (e) the Uncertificated Principal Balance of each REMIC I Regular
Interest shall equal the Cut-off Date Balance of the related Trust Mortgage
Loan; and (f) 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 Loan REMIC Regular Interest, REMIC I
Regular Interest and 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, and shall be further permanently
reduced (subject, in the case of a REMIC II Regular Interest, to Section 4.05)
on such Distribution Date by all Unfunded Principal Balance Reductions made with
respect thereto on such Distribution Date pursuant to Section 4.04. 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.
"Unfunded Principal Balance Reduction" shall mean any reduction made
in the Class Principal Balance of any Class of Principal Balance Certificates
pursuant to Section 4.04(a), the Uncertificated Principal Balance of any REMIC
II Regular Interest pursuant to Section 4.04(b), the Uncertificated Principal
Balance of any REMIC I Regular Interest pursuant to Section 4.04(c) or the
Uncertificated Principal Balance of any Loan REMIC Regular Interest pursuant to
Section 4.04(d).
"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 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
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Rights shall be allocated to the Holders of the Class X-CL and Class X-CP
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.
"Wachovia" shall mean Wachovia Bank, National Association or its
successor in interest.
"Weighted Average Loan REMIC 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 ten decimal places, of the
respective Loan REMIC Remittance Rates in effect for all the Loan REMIC Regular
Interests for such Interest Accrual Period, weighted on the basis of the
respective Uncertificated Principal Balances of such Loan REMIC Regular
Interests outstanding immediately prior to the related Distribution Date.
"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 ten decimal places, of the respective
REMIC I Remittance Rates in effect for all 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.
"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
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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
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. In the event the foregoing Federal Reserve Statistical Release
H.15 is no longer published or does not indicate the information set forth
above, 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
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(vi) the terms "include" or "including" shall mean without
limitation by reason of enumeration.
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 Default Charges Received by the Trust on the
Mortgage Pool), 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 any Advance is determined to be a
Nonrecoverable Advance, such Advance is reimbursed out of general principal
collections on the Mortgage Pool as contemplated by Section 1.03(a) above and
the particular item for which such Advance was originally made is subsequently
collected (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, 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 was recovered shall include such Recovered Amount; and (ii) for
purposes of calculating the Adjusted Principal Distribution Amount for the
Distribution Date that
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corresponds to the Collection Period in which such item was recovered, such
Recovered Amount (to the extent not already included therein) shall be added to
the Principal Distribution Amount for such Distribution Date.
(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 2003-C8". LaSalle is hereby appointed, and
does hereby agree, to act as Trustee hereunder and, in such capacity, to hold
the Trust Fund in trust for the exclusive use and benefit of all present and
future Certificateholders.
The Depositor, concurrently with the execution and delivery hereof,
does hereby assign, sell, transfer, set over and otherwise convey to the Trustee
in trust, without recourse, for the benefit of the Certificateholders, all the
right, title and interest of the Depositor in, to and under (i) the Trust
Mortgage Loans, (ii) the UBS/Depositor Mortgage Loan Purchase Agreement, (iii)
the Sangertown Square Co-Lender and Servicing Agreement, (iv) the XX Xxxx
Co-Lender Agreement, and (v) all other assets included or to be included in the
Trust Fund. Such assignment includes all interest and principal received or
receivable on or with respect to the Trust Mortgage Loans and due after the
Cut-off Date and, in the case of the Sangertown Square Trust Mortgage Loan and
the XX Xxxx Trust Mortgage Loans, is subject to the provisions of the Sangertown
Square Co-Lender and Servicing Agreement and the XX Xxxx Co-Lender Agreement,
respectively. The Trustee, on behalf of the Trust, assumes the obligations of
the "Note B Lender" under the Sangertown Square Co-Lender and Servicing
Agreement and the obligations of the "Note A Lenders" under the XX Xxxx
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 UBS Trust Mortgage Loan,
direct the UBS Mortgage Loan Seller (pursuant to the UBS/Depositor Mortgage Loan
Purchase Agreement) to deliver to and deposit with the Trustee or a Custodian
appointed thereby, and shall, in the case of each Xxxxxx Trust Mortgage Loan,
itself deliver to and deposit with 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 Sangertown Square Trust Mortgage Loan) to the Master Servicer
and the Special Servicer. 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 Sangertown Square 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 Sangertown Square 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 Sangertown Square 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 Sangertown Square 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 Sangertown Square 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 UBS Trust Mortgage Loan,
direct the UBS Mortgage Loan Seller (pursuant to the UBS/Depositor Mortgage Loan
Purchase Agreement) to deliver to and deposit with the Master Servicer, and
shall, in the case of each Xxxxxx Trust Mortgage Loan (other than the Sangertown
Square Trust Mortgage Loan), itself deliver to and deposit with the Master
Servicer, on or before the Closing Date, such other relevant documents and
records 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, together with (i) all unapplied Escrow Payments and Reserve Funds in
the possession of the UBS Mortgage Loan Seller or the Depositor, as the case may
be, that relate to such Trust Mortgage Loan and (ii) a statement indicating
which Escrow Payments and Reserve Funds are allocable to such Trust Mortgage
Loan; provided that neither the Depositor nor the UBS Mortgage Loan Seller shall
be required to deliver any draft documents, privileged or other communications,
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 hold all
such documents, records and funds on behalf of the Trustee in trust for the
benefit of the Certificateholders (and, insofar as they also relate to any XX
Xxxx Non-Trust Mortgage Loan, on behalf of and for the benefit of the related XX
Xxxx Non-Trust Mortgage Loan Noteholder). With regard to the Sangertown Square
Trust Mortgage Loan, the Depositor shall deliver or cause the delivery to the
Master Servicer of a copy of the executed Series 2000-C3 Pooling and Servicing
Agreement and Sangertown Square Co-Lender and Servicing Agreement following
receipt thereof by the Depositor.
(e) 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
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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 XX Xxxx Trust Mortgage Loan relates to a XX Xxxx Non-Trust
Mortgage Loan, the Trustee shall also hold such Mortgage File in trust for the
use and benefit of the related XX Xxxx 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, except as specifically identified in the Schedule of
Exceptions to Mortgage File Delivery attached hereto as Schedule II, (i) all
documents specified in clause (a)(i) or (b)(i), as applicable, of the definition
of "Mortgage File" 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.
(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 Trust Mortgage
Loan, and the Trustee shall, 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 XX Xxxx Non-Trust Mortgage Loan, the related XX Xxxx Non-Trust
Mortgage Loan Noteholder) that, as to each Trust Mortgage Loan and Serviced
Non-Trust 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) 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 Sangertown Square
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) (except in
the case of the Sangertown Square Trust Mortgage Loan) 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)
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 deliver a comparable certification, upon request, to any
party hereto, any XX Xxxx 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
Trust Mortgage Loans and the Serviced Non-Trust Mortgage
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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 Sangertown Square 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.
(e) If, after the Closing Date, the Depositor comes into possession of
any documents or records that constitute part of the Mortgage File or Servicing
File for any Trust Mortgage Loan or Serviced Non-Trust Mortgage Loan, the
Depositor shall promptly deliver such document to the Trustee (if it constitutes
part of the Mortgage File) or the Master Servicer (if it constitutes part of the
Servicing File), as applicable.
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 and the other parties
hereto. If any such Document Defect or Breach with respect to any Trust Mortgage
Loan materially and adversely affects the interests of the Certificateholders
therein, then such Document Defect shall constitute a "Material Document Defect"
or such Breach shall constitute a "Material Breach", as the case may be.
Promptly upon becoming aware of any such Material Document Defect or
Material Breach with respect to a UBS Trust Mortgage Loan, the Trustee shall
deliver a Seller/Depositor Notification to the UBS Mortgage Loan Seller, the
Master Servicer and the Special Servicer and shall require the UBS Mortgage Loan
Seller, within the time period and subject to the conditions provided for in the
UBS/Depositor Mortgage Loan Purchase Agreement, 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 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
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Depositor shall, not later than 90 days from 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 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 at the
applicable Purchase Price by wire transfer of immediately available funds to the
Pool Custodial Account (or, in the case of a XX Xxxx REO Property, to the XX
Xxxx REO 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 90-day period (any such additional 90-day period (with
respect to a Xxxxxx Trust Mortgage Loan), and any "Resolution Extension Period",
as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect
to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the
"Resolution Extension Period") to complete such cure or, 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(a) 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
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aware of such event, shall deliver a Seller/Depositor Notification to the Master
Servicer, the Special Servicer, the Depositor (in the case of a Xxxxxx Trust
Mortgage Loan) and the UBS Mortgage Loan Seller (in the case of a UBS Trust
Mortgage Loan), providing notice of such event and directing the Depositor or
the UBS Mortgage Loan Seller, as applicable, to cure the subject Material
Document Defect within 15 days of receipt of such Seller/Depositor Notification.
If, upon the expiration of such 15-day period, the Depositor or the UBS Mortgage
Loan Seller, as applicable, has failed to cure the subject Material Document
Defect, the Master Servicer or the Special Servicer, as applicable, shall be
entitled (but not obligated) to perform the obligations of the Depositor or the
UBS Mortgage Loan Seller, as applicable, with respect to curing the subject
Material Document Defect; and, upon electing to perform such obligations, the
Master Servicer or the Special Servicer, as applicable, shall promptly deliver a
Seller/Depositor Notification to such effect. In connection with the preceding
sentence, the Depositor will, and the UBS Mortgage Loan Seller will be obligated
under the UBS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable
costs and expenses in connection with the applicable servicer's effecting such
cure.
(b) In connection with the events in Section 2.03(a), subject to
Section 3.25, the Trustee, shall prepare and deliver, in each case promptly upon
becoming aware of such event, to the Master Servicer and the Special Servicer
and to the Depositor (with respect to a Xxxxxx Trust Mortgage Loan) and the UBS
Mortgage Loan Seller (with respect to a UBS Trust Mortgage Loan), 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 the Depositor (with respect
to a Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (with respect
to a UBS Trust Mortgage Loan), 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 internal counsel to the
Depositor and counsel the UBS Mortgage Loan Seller, as applicable, to the extent
the Trustee, Master Servicer or Special Servicer, as applicable, knows the
identity of such person.
(c) 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 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 shall be conditioned upon its receipt from the Master Servicer of a
Request for Release in the form of Exhibit D-1 attached hereto (and shall be
accompanied by a certification of a Servicing Officer to the effect that all
amounts received or to be received in connection
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with such repurchase which are required to be deposited in the applicable
Custodial Account pursuant to Section 3.04(a) or Section 3.04A(a), as
applicable, have been 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(c), and such
other instruments as may be necessary or appropriate to transfer title to an REO
Property 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.
(d) 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 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 10 Business Days of the Controlling Class Representative's
receipt of a written request for such consent) and the Trustee has received from
the Depositor or the UBS Mortgage Loan Seller, as the case may be, (i) an
Opinion of Counsel to the effect that such termination would not cause an
Adverse REMIC Event to occur with respect to any REMIC Pool or an Adverse
Grantor Trust Event to occur with respect to the Grantor Trust and (ii) written
confirmation from each Rating Agency that such termination would not cause an
Adverse Rating Event to occur with respect to any Class of Certificates; and
provided, further, that the Depositor, in the case of Xxxxxx Trust Mortgage
Loans, or the UBS Mortgage Loan Seller, in the case of UBS Trust Mortgage Loans,
may, at its option, purchase the entire subject Cross-Collateralized Group in
lieu of effecting a termination of the cross-collateralization; and provided,
further, that no such termination of the cross-collateralization among the XX
Xxxx Mortgage Loans shall be effected. 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.
(e) 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.
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(f) In the event that any party hereto receives notice that the
Mortgagor under the Sangertown Square Trust Mortgage Loan has defeased or
intends to defease such Trust Mortgage Loan, in any event on or before the
second anniversary of the Closing Date, then such party shall promptly notify
the other parties hereto, and the Trustee shall direct the Depositor (and the
Depositor hereby agrees) to promptly repurchase such Trust Mortgage Loan at the
Purchase Price applicable to a repurchase for a Material Document Defect or a
Material Breach pursuant to this Section 2.03, no later than the related
defeasance date (or, if the defeasance has occurred, as soon as reasonably
practicable after the Depositor has become aware thereof).
(g) In connection with any repurchase of the Sangertown Square Trust
Mortgage Loan pursuant to this Section 2.03, the Tax Administrator shall effect
a "qualified liquidation" of the Sangertown Square Loan REMIC in accordance with
the REMIC Provisions. The Depositor hereby agrees to pay all reasonable costs
and expenses, including the costs of any Opinions of Counsel, in connection with
any such "qualified liquidation" of the Sangertown Square Loan REMIC in
accordance with the REMIC Provisions.
SECTION 2.04. Representations, Warranties and Covenants of the
Depositor.
(a) The Depositor hereby represents, warrants and covenants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Fiscal Agent, the Master Servicer and the Special Servicer, as of the
Closing Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, will not violate the Depositor's certificate of
incorporation or by-laws or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of 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
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violation, in the Depositor's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Depositor to
perform its obligations under this Agreement or the financial condition of
the Depositor.
(vi) The transfer of the Trust Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer or
similar law in effect in any applicable jurisdiction.
(vii) The Depositor is not transferring the Trust Mortgage Loans
to the Trustee with any intent to hinder, delay or defraud its present or
future creditors.
(viii) The Depositor has been solvent at all relevant times prior
to, and will not be rendered insolvent by, its transfer of the Trust
Mortgage Loans to the Trustee pursuant to Section 2.01(a).
(ix) After giving effect to its transfer of the Trust Mortgage
Loans to the Trustee pursuant to Section 2.01(a), the value of the
Depositor's assets, either taken at their present fair saleable value or at
fair valuation, will exceed the amount of the Depositor's debts and
obligations, including contingent and unliquidated debts and obligations of
the Depositor, and the Depositor will not be left with unreasonably small
assets or capital with which to engage in and conduct its business.
(x) The Depositor does not intend to, and does not believe that
it will, incur debts or obligations beyond its ability to pay such debts
and obligations as they mature.
(xi) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Depositor are pending or contemplated.
(xii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's good faith and reasonable judgment,
is likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(xiii) Except for any actions that are the express responsibility
of another party hereunder or under the Mortgage Loan Purchase Agreements,
and further except for actions that the Depositor is expressly permitted to
complete subsequent to the Closing Date, the Depositor has taken all
actions required under applicable law to effectuate the transfer of the
Trust Mortgage Loans by the Depositor to the Trustee.
(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.
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(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 III 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 November 2003.
(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 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 with respect to the Sangertown Square
Trust Mortgage Loan which may, pursuant to the Sangertown Square Co-Lender
and Servicing Agreement, require notice to one or more rating agencies or
to the Sangertown Square Non-Trust Mortgage Loan Noteholder 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.
(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-
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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. If such
Mortgage Loan has a Cut-off Date Balance of $15 million or more, the
related Mortgagor or another Person has agreed, in effect, to be liable for
all liabilities, costs, losses, damages, expenses or claims suffered or
incurred by the mortgagee under such Mortgage Loan by reason of or in
connection with and to the extent of (A) any material intentional fraud or
material intentional misrepresentation by the related Mortgagor and (B) any
breach on the part of the related Mortgagor of any environmental
representations, warranties and covenants contained in the related Mortgage
Loan documents; provided that, instead of any breach described in clause
(B) of this sentence, the related Mortgagor or such other Person may
instead be responsible for 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. As of the date of origination,
subject to the limitations and exceptions as to enforceability set forth in
paragraph (b)(v) above, there was no valid offset, defense, counterclaim or
right to rescission 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, 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 with
respect to such Mortgage Note, Mortgage(s) or other agreements executed in
connection with such Mortgage Loan; and, 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 Sangertown
Square Trust Mortgage Loan, to the Sangertown Square 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, 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).
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(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 and all buildings thereon,
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 pro forma title policy or
title policy commitment); (C) exceptions and exclusions specifically
referred to in the related lender's title insurance policy (or, if not yet
issued, referred to in a pro forma title policy or title policy
commitment); (D) other matters to which like properties are commonly
subject; (E) the rights of tenants (as tenants only) under leases
(including subleases) pertaining to the related Mortgaged Property; (F)
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 (G) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage
for another Xxxxxx Trust Mortgage Loan contained in the same
Cross-Collateralized Group; provided that, in the case of the Sangertown
Square Trust Mortgage Loan, such Mortgage also secures the Sangertown
Square Non-Trust Mortgage Loan, which is senior in right of payment to the
Sangertown Square Trust Mortgage Loan; and provided, further, that all of
the XX Xxxx Loan Pairs are cross-collateralized and cross-defaulted and the
related Mortgages also secure the XX Xxxx Non-Trust Mortgage Loans. With
respect to each Xxxxxx Trust 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 personal property identified therein or
on a schedule attached thereto, which is owned by the Mortgagor and is used
in, and reasonably necessary to, the operation of the related Mortgaged
Property.
(ix) Financing Statements. If the related Mortgaged Property is
operated as a hospitality property, the related Xxxxxx Mortgage Loan Seller
has, or has caused to be, filed and/or recorded, or submitted for filing
and/or recording, in appropriate public filing and recording offices, all
UCC-1 financing statements necessary to create and perfect a security
interest in and lien on the items of personal property described therein
(such description being generally consistent with the practices of prudent
commercial mortgage lenders) (which personal property includes all
furniture, fixtures, equipment and other personal property located at the
subject Mortgaged Property) that are owned by the related Mortgagor and
located at, and necessary or material to the operation of, the subject
Mortgaged Property, to the extent perfection may be effected pursuant to
applicable law by recording or filing.
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(x) 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 November 2003 became due and payable in respect of, and
materially affect, any related Mortgaged Property have been paid or are
escrowed for 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 Mortgaged Property and could
constitute liens on the Mortgaged Property prior to the lien of the
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.
(xi) 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. If
such Mortgage Loan has a Cut-off Date Balance of $15 million or more, then
(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 any rights of the lessor under any related Ground Lease) the
related Mortgage Loan documents provide that any condemnation awards 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.
(xii) 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, in the case of a Trust Mortgage
Loan that is part of a Loan Pair, in the original principal amount of such
Loan Pair) after all advances of principal, subject only to Permitted
Encumbrances and, in the case of the Sangertown Square Trust Mortgage Loan,
further subject to the fact that the related Mortgage also secures the
Sangertown Square Non-Trust Mortgage Loan, which is senior in right of
payment thereto, and, in the case of the XX Xxxx Trust Mortgage Loans,
further subject to the fact that all of the XX Xxxx Loan Pairs are
cross-defaulted and cross-collateralized and the related Mortgages also
secure the XX Xxxx Non-Trust Mortgage Loans (or there is a binding
commitment or binding pro forma from a title insurer qualified and/or
licensed in the applicable jurisdiction, as required, to issue such
policy); such title insurance policy, if issued, 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 Sangertown Square Trust
Mortgage Loan, the Sangertown Square Trustee) 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 under
such title insurance policy, if issued; and neither the Depositor nor, to
the best of the Depositor's knowledge, the related 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)
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access to a public road, (B) that there is no material encroachment by any
improvements 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.
(xiii) Property Insurance. As of the date of its origination and,
to the best of the Depositor's knowledge, as of the Closing Date, all
insurance required under each related Mortgage (except where a tenant under
a lease is permitted to insure or self-insure) was in full force and effect
with respect to each related Mortgaged Property; such insurance included
(A) "all risk" or fire and extended perils insurance, in an amount (subject
to a customary deductible) at least equal to the lesser of (i) 100% of the
full insurable replacement cost of the improvements located on the related
Mortgaged Property and (ii) the initial principal balance of such Mortgage
Loan (or, in the case of a Trust Mortgage Loan that is part of a Loan Pair,
the initial principal balance of such Loan Pair), or the portion thereof
allocable to such Mortgaged Property, (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 in or "seismic zone" 3 or 4 and (2) a seismic assessment
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, earthquake 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 under a lease is permitted
to insure or self-insure), and any reasonable out-of-pocket costs and
expenses incurred by the mortgagee in connection with such default in
obtaining such insurance coverage are recoverable from the related
Mortgagor; the related Mortgage Loan documents require that the related
insurance policies provide that they may not be terminated without at least
10 days' prior notice to the mortgagee and, to the Depositor's knowledge,
it has not received any such notice; the related insurance certificates
(other than those limited to liability protection) name the mortgagee and
its successors as mortgagee or loss payee; no notice of termination or
cancellation with respect to any such insurance policy has been received by
the Depositor; all premiums under any such insurance policy have been paid
through the related Due Date in November 2003; all such insurance policies
are required to be maintained with insurance companies having "financial
strength" or "claims paying ability" ratings of at least "A:VII" from A.M.
Best Company or at least "BBB+" (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); 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 rights of the lessor under any related
Ground Lease, 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
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.
Notwithstanding anything to the contrary in this paragraph (b)(xiii), with
regard to insurance for acts of terrorism, any such insurance and the
amount
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thereof may be limited by the commercial availability of such coverage,
whether the mortgagee may reasonably require such insurance, certain
limitations with respect to the cost thereof and/or whether such hazards
are at the time commonly insured against for property similar to the
related Mortgaged Property located in or around the region in which the
Mortgaged Property is located.
(xiv) No Material Defaults. Other than payments due but not yet
30 days or more delinquent, there is, to the actual knowledge of the
Depositor, (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) 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 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). If
the Depositor had knowledge of any material default, breach, violation or
event of acceleration under any of such documents, the Depositor has not
waived any such material default, breach, violation or event of
acceleration. 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.
(xv) 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.
(xvi) Interest Accrual Basis. Such Mortgage Loan accrues interest
on an Actual/360 Basis or on 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).
(xvii) 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 to secure any other promissory note or
debt (other than another Mortgage Loan in the Trust Fund and, in the case
of the Sangertown Square Trust Mortgage Loan, other than the Sangertown
Square Non-Trust Mortgage Loan and, in the case of the XX Xxxx Trust
Mortgage Loans, other than the XX Xxxx Non-Trust Mortgage Loans).
(xviii) 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
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was further reduced by a proportionate amount of any lien that is on a
parity with the lien that secures such Mortgage Loan.
(xix) 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).
(xx) Environmental Conditions. With respect to each Xxxxxx Trust
Mortgage Loan, one or more environmental site assessments or transaction
screens, or one or more updates of a previously conducted environmental
assessment or transaction screen, 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), transaction screen(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); all such
environmental site assessments and transaction screens met ASTM
requirements to the extent set forth in such report; and none of the
above-referenced environmental reports reveal any circumstances or
conditions that are in violation of any applicable environmental laws, or
if any 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 related Mortgagor or other responsible party 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.
(xxi) 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.
(xxii) Bankruptcy. As of the date of origination of such Mortgage
Loan, to the Depositor's knowledge, after due inquiry, the related
Mortgagor was not a debtor in any bankruptcy, reorganization, insolvency or
comparable proceeding.
(xxiii) 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.
(xxiv) 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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(xxv) 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.
(xxvi) 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 would not occur, any related Mortgaged Property or direct
controlling interest therein, is directly encumbered in connection with
subordinate financing; and, except in the case of the Sangertown Square
Trust Mortgage Loan (as to which the Sangertown Square Non-Trust Mortgage
Loan is actually senior in right of payment) and the XX Xxxx Trust Mortgage
Loans, no such consent has been granted by the applicable Xxxxxx Mortgage
Loan Seller. To the Depositor's knowledge, except in the case of the
Sangertown Square Trust Mortgage Loan (as to which the Sangertown Square
Non-Trust Mortgage Loan is actually senior in right of payment) and the XX
Xxxx Trust Mortgage Loans, no related Mortgaged Property is encumbered in
connection with subordinate financing; however, if the related Mortgaged
Property is listed on Schedule III under clause (xxvi), then certain direct
controlling equity holders in the related Mortgagor have the right to
incur, or are known to the Depositor to have incurred, debt secured by
their ownership interest in the related Mortgagor.
(xxvii) 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).
(xxviii) Mortgagor Concentration. 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.
(xxix) Waivers; Modifications. Except as set forth in a written
instrument included in the related Mortgage File, the (a) 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
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
and adversely interferes with the mortgagee's realization of the principal
benefits and/or security intended to be provided by such document or
instrument.
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(xxx) 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.
(xxxi) 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 material
portion of the related Mortgaged Property that is necessary to the
operation of such Mortgaged Property and 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) delivery of substitute real property collateral, or (D) payment
of a release price equal to at least 110% of the amount of such Mortgage
Loan allocated to the related Mortgaged Property subject to the release.
(xxxii) 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)(xii) 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 (unless grandfathered with respect thereto or
affirmatively covered by the title insurance referred to in paragraph
(b)(xii) above (or an endorsement thereto)), and no improvements on
adjoining properties encroached upon such Mortgaged Property to any
material extent.
(xxxiii) Property Financial Statements. The related Mortgagor has
covenanted in the related Mortgage Loan documents to deliver to the
mortgagee quarterly and/or annual operating statements and rent rolls of
each related Mortgaged Property.
(xxxiv) Single Purpose Entity. If such Mortgage Loan has a
Cut-off Date Balance in excess of $15 million, then the related Mortgagor
is obligated by its organizational documents and/or 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
less than $15 million, 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 asset unrelated to
such Mortgaged Property and, except as permitted by the related
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Mortgage Loan documents, not to incur other financing for so long as such
Mortgage Loan is outstanding.
(xxxv) 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.
(xxxvi) 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.
(xxxvii) Originator Duly Authorized. To the extent required under
applicable law, 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.
(xxxviii) 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.
(xxxix) 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; provided that the Sangertown Square Mortgaged
Property secures the Sangertown Square Trust Mortgage Loan together with
the Sangertown Square Non-Trust Mortgage Loan; and provided, further, that
the XX Xxxx Loan Pairs are cross-defaulted and cross-collateralized and the
XX Xxxx Mortgaged Properties secure the XX Xxxx Trust Mortgage Loans
together with the XX Xxxx Non-Trust Mortgage Loans. 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 Sangertown Square
Trust Mortgage Loan, the Sangertown Square Trustee).
(xl) 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 they are, the related Mortgagor
has obtained flood hazard insurance.
(xli) Engineering Assessments. With respect to each Xxxxxx Trust
Mortgage Loan, 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 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 such assessment(s) and or
update(s), does not have any knowledge of any
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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.
(xlii) 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 Sangertown Square Trust Mortgage Loan, has transferred to
the Sangertown Square Trustee) all of its right, title and interest in and
to such amounts.
(xliii) 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.
(xliv) Origination, Servicing and Collection Practices. The
origination, servicing and collection practices used by the Depositor or
any prior holder of the related Mortgage Note have been in all respects
legal and have met customary industry standards.
(xlv) Fee Simple. Except for Xxxxxx Trust Mortgage Loans covered
by the representation and warranty in the immediately following paragraph
(xlvi), such Mortgage Loan is secured in whole or in material part by a fee
simple interest.
(xlvi) 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 Sangertown Square Trust Mortgage Loan, the Sangertown
Square 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 Sangertown Square Trust Mortgage Loan, the
Sangertown Square 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);
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(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 such Mortgage Loan, and to the actual
knowledge of the Depositor, at the Closing Date, such Ground
Lease is in full force and effect; and to the actual
knowledge of the Depositor, 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 (exclusive
of any unexercised extension options set forth therein) that
extends not less than 20 years beyond the Stated Maturity
Date of such 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
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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 such 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.
(xlvii) Fee Simple and Leasehold Interest. If such Mortgage Loan
is secured in whole or in part 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.
(xlviii) 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 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.
(xlix) Defeasance. If such Mortgage Loan is a Defeasance Trust
Mortgage Loan, the related Mortgage Loan documents require the related
Mortgagor to pay all reasonable
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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 Sangertown Square Trust Mortgage Loan, the Sangertown
Square Trustee) has a perfected security interest in such Defeasance
Collateral prior to any other claim or interest.
(l) Primary Servicing Rights. 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 Wachovia, in its capacity
as a primary servicer, or (C) as has been terminated.
(li) Mechanics' and Materialmen's Liens. To the Depositor's
knowledge, as of origination (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)(xii) 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 such Mortgaged Property since origination that have not
been released, bonded, insured against or escrowed for.
(1ii) Due Date. Subject to any business day convention imposed by
the related loan documents, the Due Date for such Mortgage Loan is
scheduled to be the first day or the eleventh day of each month.
(liii) 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 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
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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.
(liv) 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.
(lv) 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.
(lvi) No Undisclosed Common Ownership. To the Depositor's
knowledge, no two properties securing Xxxxxx Trust Mortgage Loans are
directly or indirectly under common ownership except to the extent that
such common ownership has been specifically disclosed in the Trust Mortgage
Loan Schedule.
(lvii) Mortgage 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.
(lviii) Usury. Such Mortgage Loan complied with or was exempt
from all applicable usury laws in effect at its date of origination.
(lix) ARD Mortgage Loan. If such Mortgage Loan is an ARD Mortgage
Loan and has a Cut-off Date Balance of $15,000,000 or more, 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 due under such Mortgage Loan; and
(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.
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(lx) 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.
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,
warranties and covenants, the party discovering such breach shall give prompt
written notice thereof to the other parties.
SECTION 2.05. Acceptance of Grantor Trust Assets by Trustee; Issuance
of the Class V Certificates.
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 the ARD Trust Mortgage Loans and any successor REO Trust Mortgage Loans
with respect thereto constitute a grantor trust for federal income tax purposes.
The Trustee, by its execution and delivery hereof, acknowledges the assignment
to it of the Grantor Trust Assets 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 Grantor Trust Assets, 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 the Grantor Trust. The rights of
Holders of the Class V Certificates, to receive distributions from the proceeds
of the Grantor Trust Assets, and all ownership interests of such Holders in and
to such distributions, shall be as set forth in this Agreement. The Class V
Certificates shall evidence the entire beneficial ownership of the Grantor
Trust.
SECTION 2.06. Acceptance of the Sangertown Square Loan REMIC by
Trustee; Execution, Authentication and Delivery of Class
R-LR Certificates; Creation of Loan REMIC Regular
Interests.
The Trustee hereby acknowledges the assignment to it of the assets
included in the Sangertown Square Loan REMIC. Concurrently with such assignment
and in exchange therefor, (a) the Loan REMIC 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-LR Certificates in authorized
denominations. The interests evidenced by the Class R-LR Certificates, together
with the related Loan REMIC Regular Interests, constitute the entire beneficial
ownership of the Sangertown Square Loan REMIC. The rights of the Class R-LR
Certificateholders and REMIC I (as holder of the Loan REMIC Regular Interests)
to receive distributions from the proceeds of the Sangertown Square Trust
Mortgage Loan or any Sangertown
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Square REO Trust Mortgage Loan in respect of the Class R-LR Certificates and the
Loan REMIC Regular Interests, respectively, and all ownership interests
evidenced or constituted by the Class R-LR Certificates and the Loan REMIC
Regular Interests, shall be as set forth in this Agreement.
SECTION 2.07. Conveyance of Loan REMIC Regular Interests.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the Loan REMIC
Regular Interests to the Trustee for the benefit of the Holders of the Class
R-LR Certificates and REMIC II as the holder of the REMIC I Regular Interests.
The Trustee acknowledges the assignment to it of the Loan REMIC Regular
Interests and declares that it holds and will hold the same in trust for the
exclusive use and benefit of all present and future Holders of the Class R-I
Certificates, the Class R-II Certificates and the REMIC III Certificates.
SECTION 2.08. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests.
The Trustee hereby acknowledges the assignment to it of the assets
included in REMIC I. Concurrently with such assignment and in exchange therefor,
(a) the REMIC I Regular Interests have been issued, and (b) pursuant to the
written request of the Depositor executed by an authorized officer thereof, the
Trustee, as Certificate Registrar, has executed, and the Trustee, as
Authenticating Agent, has authenticated and delivered to or upon the order of
the Depositor, the Class R-I Certificates in authorized denominations. The
interests evidenced by the Class R-I Certificates, together with the REMIC I
Regular Interests, constitute the entire beneficial ownership of REMIC I. The
rights of the Class R-I Certificateholders and REMIC II (as holder of the REMIC
I Regular Interests) to receive distributions from the proceeds of REMIC I in
respect of the Class R-I Certificates and the REMIC I Regular Interests,
respectively, and all ownership interests evidenced or constituted by the Class
R-I Certificates and the REMIC I Regular Interests, shall be as set forth in
this Agreement.
SECTION 2.09. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the Class R-II
Certificates and REMIC III as the holder of the REMIC II Regular Interests. The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests and
declares that it holds and will hold the same in trust for the exclusive use and
benefit of all present and future Holders of the Class R-II Certificates and the
REMIC III Certificates.
SECTION 2.10. Execution, Authentication and Delivery of Class R-II
Certificates; Creation of REMIC II Regular Interests.
Concurrently with the assignment to the Trustee of the REMIC I Regular
Interests and in exchange therefor, (a) the REMIC II Regular Interests have been
issued and (b) pursuant to the written request of the Depositor executed by an
authorized officer thereof, the Trustee, as Certificate Registrar, has executed,
and the Trustee, as Authenticating Agent, has authenticated and delivered to or
upon the order of the Depositor, the Class R-II Certificates in authorized
denominations. The rights of the Class
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R-II Certificateholders and REMIC III (as holder of the REMIC II Regular
Interests) to receive distributions from the proceeds of REMIC II in respect of
the Class R-II Certificates and the REMIC II Regular Interests, respectively,
and all ownership interests evidenced or constituted by the Class R-II
Certificates and the REMIC II Regular Interests, shall be as set forth in this
Agreement.
SECTION 2.11. Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC II
Regular Interests to the Trustee for the benefit of the Holders of the REMIC III
Certificates. The Trustee acknowledges the assignment to it of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC III
Certificates.
SECTION 2.12. Execution, Authentication and Delivery of REMIC III
Certificates.
Concurrently with the assignment to the Trustee of the REMIC II
Regular Interests and in exchange therefor, pursuant to the written request of
the Depositor executed by an officer thereof, the Trustee, as Certificate
Registrar, has executed, and the Trustee, as Authenticating Agent, has
authenticated and delivered to or upon the order of the Depositor, the REMIC III
Certificates in authorized denominations evidencing the entire beneficial
ownership of REMIC III. The rights of the Holders of the respective Classes of
REMIC III Certificates to receive distributions from the proceeds of REMIC III
in respect of their REMIC III Certificates, and all ownership interests
evidenced or constituted by the respective Classes of REMIC III Certificates in
such distributions, shall be as set forth in this Agreement.
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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 the XX Xxxx Loan Group, for the benefit of the
Certificateholders and the related XX Xxxx Non-Trust Mortgage Loan Noteholders),
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 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 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 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), Section 6.11 and Section 6.11A
(taking account of Section 6.11(b) and Section 6.11A(b)), 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 XX Xxxx
Non-Trust Mortgage Loan Noteholder to execute and deliver, on behalf of the
Certificateholders, the Trustee and the XX Xxxx 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 3.20, Section 6.11 and
Section 6.11A (taking account of Section 6.11(b) and Section 6.11A(b)), 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
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or of assignment, and all other comparable instruments; and (iv) any 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 XX Xxxx Loan Pairs are
subject to the terms and conditions of the XX Xxxx Co-Lender Agreement. The
parties hereto further recognize the respective rights and obligations of the
"Lenders" under the XX Xxxx Co-Lender Agreement, including with respect to: (i)
the allocation of collections on or in respect of the XX Xxxx Loan Group in
accordance with Section 4.01 of the XX Xxxx Co-Lender Agreement, (ii) the making
of payments to the "Lenders" in accordance with Section 4.02 of the XX Xxxx
Co-Lender Agreement, (iii) the purchase of any XX Xxxx Trust Mortgage Loan by a
XX Xxxx Non-Trust Mortgage Loan Noteholder or its designee in accordance with
Section 5.01 of the XX Xxxx Co-Lender Agreement, and (iv) the right of the XX
Xxxx Non-Trust Mortgage Loan Noteholders to cure certain events of default
occurring with respect to the XX Xxxx Trust Mortgage Loans in accordance with
Section 5.02 of the XX Xxxx Co-Lender Agreement.
If the XX Xxxx Trust Mortgage Loans are no longer part of the Trust
Fund, then (subject to the next paragraph) the servicing and administration of
the XX Xxxx Loan Group are to be governed by a separate servicing agreement and
not by this Agreement. Upon the request of the then current holders of the
Mortgage Notes for the XX Xxxx Loan Group, the Master Servicer and, if the XX
Xxxx Loan Group is then being specially serviced hereunder, the Special Servicer
shall continue to act in such capacities under such separate servicing
agreement, which agreement shall be reasonably acceptable to the Master Servicer
and/or the Special Servicer, as the case may be, and shall (as contemplated by
Section 3.01 of the XX Xxxx Co-Lender Agreement) 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 XX Xxxx Loan Group and the XX Xxxx
Mortgaged Properties shall be the sole assets serviced and administered
thereunder and the sole source of funds thereunder.
If at any time, with respect to the XX Xxxx Loan Group, neither the XX
Xxxx Trust Mortgage Loans nor any XX Xxxx REO Property is an asset of the Trust
Fund, and if a separate servicing agreement with respect to the XX Xxxx Loan
Pairs or any related REO Property, as applicable, has not been entered into as
contemplated by Section 3.01 of the XX Xxxx Co-Lender Agreement, and
notwithstanding that neither the XX Xxxx Trust Mortgage Loans (in whole or in
part) nor any XX Xxxx REO Property is an asset of the Trust Fund, then, unless
directed otherwise by the then current holders of the Mortgage Notes for the XX
Xxxx Loan Group, the Master Servicer and, if applicable, the Special Servicer
shall continue to service and administer the XX Xxxx Loan Group and/or any XX
Xxxx REO Property, for the benefit of the respective holders of the XX Xxxx Loan
Group, under this Agreement as if the XX Xxxx Loan Group or any related REO
Property were the sole assets subject hereto, with certain
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references in this Agreement applicable to the Trust, the Trustee and/or 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 holders of the Mortgage Notes for the XX Xxxx
Trust Mortgage Loans.
(d) The parties hereto acknowledge that the Sangertown Square Loan
Pair is subject to the terms and conditions of the Sangertown Square Co-Lender
and Servicing Agreement. The parties hereto further recognize the respective
rights and obligations of the "Lenders" under the Sangertown Square Co-Lender
and Servicing Agreement, including with respect to: (i) the allocation of
collections on or in respect of the Sangertown Square Loan Pair in accordance
with the related loan documents and Section 4.01 of the Sangertown Square
Co-Lender and Servicing Agreement; and (ii) the making of payments to the
"Lenders" in accordance with Section 4.01 of the Sangertown Square Co-Lender and
Servicing Agreement. The parties hereto further acknowledge that: (a) pursuant
to the Sangertown Square Co-Lender and Servicing Agreement, the Sangertown
Square Loan Pair is to be serviced and administered by the Sangertown Square
Servicers in accordance with the Sangertown Square Servicing Agreement, which
term includes any successor agreement contemplated under the Sangertown Square
Co-Lender and Servicing Agreement, (b) the obligations of the Master Servicer
with respect to the Sangertown Square Trust Mortgage Loan are only as expressly
set forth in this Agreement, (c) none of the Master Servicer, the Trustee or the
Fiscal Agent have any obligation to monitor or supervise, and shall not be
liable for, the performance of the Sangertown Square Servicers other than as
expressly set forth in this Agreement, and (d) none of the Master Servicer, the
Trustee or the Fiscal Agent have any obligation to make Servicing Advances with
respect to the Sangertown Square Loan Pair.
(e) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and the XX Xxxx Non-Trust Mortgage Loan Noteholders 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
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Specially Serviced Mortgage Loan, the Master Servicer shall promptly notify the
Special Servicer, and the Special Servicer shall direct the Master Servicer as
to the proper posting of such payment. Consistent with the foregoing, the
Special Servicer, with regard to a Specially Serviced Mortgage Loan, or the
Master Servicer, with regard to a Performing Serviced Mortgage Loan, may waive
or defer any Default Charges in connection with collecting any late payment on a
Serviced Mortgage Loan; provided that without the consent of the Special
Servicer in the case of a proposed waiver by the Master Servicer, no such waiver
or deferral may be made by the Master Servicer pursuant to this Section 3.02 if
any Advance has been made as to such delinquent payment.
(b) All amounts Received by the Trust with respect to any
Cross-Collateralized Group in the form of payments from Mortgagors, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds, shall be applied by
the Master Servicer among the Trust Mortgage Loans constituting such
Cross-Collateralized Group in accordance with the express provisions of the
related loan documents and, in the absence of such express provisions or to the
extent that such payments and other collections may be applied at the discretion
of the lender, on a pro rata basis in accordance with the respective amounts
then "due and owing" as to each such Mortgage Loan. Except in the case of the
Sangertown Square Trust Mortgage Loan and the XX Xxxx Trust Mortgage Loans,
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 the related Mortgage Note and Mortgage (including
for principal and accrued and unpaid interest) in accordance with the express
provisions of the related Mortgage Note and Mortgage 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 and,
if applicable, unpaid Liquidation Expenses; 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 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 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
Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and
unpaid Additional Interest on such ARD
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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 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, 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).
All amounts received with respect to the XX Xxxx Loan Group shall be
applied to amounts due and owing under the XX Xxxx Loan Group (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 XX Xxxx Co-Lender Agreement.
All amounts Received by the Trust with respect to the Sangertown
Square Trust Mortgage Loan shall be allocated among interest, principal,
Additional Interest and/or prepayment consideration due thereon in accordance
with the terms of any distribution date statement or servicer report received
from the Sangertown Square Servicers with respect to the Sangertown Square Trust
Mortgage Loan and, in the absence of any such statement or report, in accordance
with Section 4.01(b) of the Sangertown Square Co-Lender and Servicing Agreement.
(c) Promptly following the Closing Date, the Trustee shall send
written notice to the Sangertown Square Master Servicer, stating that, as of the
Closing Date, the Trustee is the holder of the Sangertown Square Trust Mortgage
Loan and directing the Sangertown Square 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 Sangertown Square
Trust Mortgage Loan under the Sangertown Square Co-Lender and Servicing
Agreement and the Sangertown Square Servicing Agreement. The Master Servicer
shall, on the day of receipt thereof, deposit into the Pool Custodial Account
all amounts received by it from the Sangertown Square Master Servicer or any
other party under the Sangertown Square Servicing Agreement with respect to the
Sangertown Square Trust Mortgage Loan, the Sangertown Square Mortgaged Property
or any Sangertown Square REO Property. In connection with the foregoing, the
Master Servicer shall provide the Sangertown Square Master Servicer wiring
instructions for remittances to the Master Servicer. In the event the Master
Servicer fails to so receive any amounts (including any Xxxxxxxxxx Xxxxxx X&X
Advances) due to the holder of the Sangertown Square Trust Mortgage Loan during
any calendar month under the Sangertown Square Co-Lender and Servicing Agreement
and the Sangertown Square Servicing Agreement by the end of the related
Collection Period ending in such calendar month, the Master Servicer shall
promptly (i) notify the Sangertown Square Master Servicer, the Trustee and the
Sangertown Square Trustee that such amounts due with respect to the Sangertown
Square Trust Mortgage Loan or any Sangertown Square REO Trust Mortgage Loan have
not been received (specifying the amount of such deficiency), (ii) make inquiry
of the Sangertown Square Master Servicer and Sangertown Square Trustee (and, to
the extent learned, inform the Trustee) as to the reason that such amounts have
not been timely received and (iii) as and to the extent appropriate, request
that the Sangertown Square Master Servicer promptly remedy such failure to make
payment. In accordance
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with Section 4.03, in the event the Sangertown Square Master Servicer fails to
make a required Xxxxxxxxxx Xxxxxx X&X Advance with respect to the Sangertown
Square Trust Mortgage Loan or any Sangertown Square REO Trust Mortgage Loan,
then the Trustee or, if it fails to do so, the Fiscal Agent, shall make a P&I
Advance in the amount of such Xxxxxxxxxx Xxxxxx X&X 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 the XX Xxxx Loan Group, 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
the XX Xxxx Loan Group. 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 the
Fiscal Agent, as applicable, for such Servicing Advance; (iii) to refund to
Mortgagors any sums as may be determined to be overages; (iv) following an event
of default under the related Serviced Trust Mortgage Loan, for such other
purposes as are consistent with the related loan documents, applicable law and
the Servicing Standard; (v) to pay interest, if required and as described below,
to Mortgagors on balances in such Servicing Account; (vi) to pay the Master
Servicer interest and investment income on balances in such Servicing Account as
described in Section 3.06, if and to the extent not required by law or the terms
of the related loan documents to be paid to the Mortgagor; or (vii) to clear and
terminate such Servicing Account at the termination of this Agreement in
accordance with Section 9.01. To the extent permitted by law or the applicable
loan documents, funds in the Servicing Accounts may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall pay or cause to be paid to the Mortgagors interest, if
any, earned on the investment of funds in the related Servicing Accounts, if
required by law or the terms of the related Serviced Mortgage Loan. If the
Master Servicer shall deposit in a Servicing Account any amount not required to
be deposited therein, it may at any time withdraw such amount from such
Servicing Account, any provision herein to the contrary notwithstanding.
(b) The Master Servicer shall, as to each and every Serviced Mortgage
Loan, (i) maintain accurate records with respect to the related Mortgaged
Property reflecting the status of real estate taxes, assessments and other
similar items that are or may become a lien thereon and the status of insurance
premiums and any ground rents payable in respect thereof and (ii) use reasonable
efforts to obtain, from time to time, all bills for (or otherwise confirm) the
payment of such items (including renewal premiums) and, if the subject Serviced
Mortgage Loan requires the related Mortgagor to escrow for such items, shall
effect payment thereof prior to the applicable penalty or termination date. For
purposes of effecting any such payment for which it is responsible, the Master
Servicer shall apply
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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) or Section 3.05A. No costs incurred by
the Master Servicer in effecting the payment of real estate taxes, assessments
and, if applicable, ground rents on or in respect of the Mortgaged Properties
shall, for purposes of this Agreement, including the Trustee's calculation of
monthly distributions to Certificateholders, be added to the unpaid Stated
Principal Balances of the related Serviced Mortgage Loans, notwithstanding that
the terms of such Mortgage Loans so permit. The foregoing shall in no way limit
the Master Servicer's ability to charge and collect from the Mortgagor such
costs together with interest thereon.
(d) The Master Servicer shall, as to all Serviced Mortgage Loans,
establish and maintain, as applicable, one or more accounts (the "Reserve
Accounts"), into which all related Reserve Funds, if any, shall be deposited and
retained; provided that, in the case of the XX Xxxx Loan Group, 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 the XX Xxxx Loan Group. Withdrawals of amounts so
deposited may be made (i) for the specific purposes for which the particular
Reserve Funds were delivered, in accordance with the Servicing Standard and the
terms of the related Mortgage Note, Mortgage and any other agreement with the
related Mortgagor governing such Reserve Funds, (ii) to pay the Master Servicer
interest and investment income earned on amounts in the Reserve Accounts as
described below, and (iii) following an event of default under the related
Serviced Mortgage Loan, for such other purposes as are consistent with the
related loan documents, applicable law and the Servicing Standard. To the extent
permitted in the applicable loan documents, funds in the Reserve Accounts may be
invested in Permitted Investments in accordance with the provisions of Section
3.06. Subject to the related loan documents, all Reserve Accounts shall be
Eligible Accounts. Consistent with the Servicing Standard, the Master Servicer
may waive or extend the date set forth in any agreement governing Reserve Funds
by which any required repairs, capital improvements and/or environmental
remediation at the related Mortgaged Property must be completed; provided that
any waiver, any extension for more than 120 days and any subsequent extension
may only be granted with the consent of the Special Servicer.
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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 (ix) below (which shall not include any
amounts allocable to the XX Xxxx 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 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 Sangertown Square 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 hereunder or 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 hereunder or 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 REO Property;
(v) all remittances to the Trust under the Series 2000-C3 Pooling
and Servicing Agreement and/or the Sangertown Square Co-Lender and
Servicing Agreement with respect to the Sangertown Square Trust Mortgage
Loan or any Sangertown Square REO Property;
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(vi) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Pool Custodial Account;
(vii) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.07(b) in connection with
losses on the Mortgage Pool resulting from a deductible clause in a blanket
hazard policy;
(viii) any amounts required to be transferred from the XX Xxxx
Custodial Account pursuant to Section 3.05A or the Pool REO Account
pursuant to Section 3.16(c); and
(ix) 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 (iv), (vii) and (ix)
above that relate to the XX Xxxx Trust Mortgage Loans or any XX Xxxx REO
Properties (other than Liquidation Proceeds derived from the sale of any XX Xxxx
Trust Mortgage Loan to or through a XX Xxxx Non-Trust Mortgage Loan Noteholder
pursuant to the XX Xxxx Co-Lender Agreement, in connection with a Material
Breach or a Material Document Defect pursuant to Section 2.03 or as a Specially
Serviced Trust Mortgage Loan pursuant to Section 3.18) shall be deposited in the
XX Xxxx Custodial Account, and, in any such case, shall thereafter be
transferred to the Pool Custodial Account as provided in Section 3.05A, together
with any other amounts required to be transferred from the XX Xxxx Custodial
Account to the Pool Custodial Account from time to time pursuant to Section
3.05A.
The foregoing requirements for deposit in the Pool Custodial Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing a Mortgagor's payment of costs
and expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary statements or demands, amounts collected
for checks returned for insufficient funds and any similar fees (other than
Prepayment Consideration) not expressly referred to in the prior paragraph need
not be deposited by the Master Servicer in the Pool Custodial Account. If the
Master Servicer shall deposit in the Pool Custodial Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Pool Custodial Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer, as additional special servicing compensation in accordance with
Section 3.11(d), all assumption fees and assumption application fees (or the
applicable portions thereof), and other transaction fees received by the Master
Servicer to which the Special Servicer is entitled pursuant to such section upon
receipt of a written statement (on which the Master Servicer is entitled to
rely) of a Servicing Officer of the Special Servicer describing the item and
amount (unless pursuant to this Agreement it is otherwise clear that the Special
Servicer is entitled to such amounts, in which case a written statement is not
required). The Pool Custodial Account shall be maintained as a segregated
account, separate and apart from trust funds created for mortgage-backed
securities of other series and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (ix) of the second preceding paragraph with respect to any Serviced
Trust Mortgage Loan (other than a XX Xxxx Trust Mortgage Loan), the Special
Servicer shall promptly, but in no event later than two Business Days after
receipt, remit such amounts to the Master Servicer for deposit into the Pool
Custodial Account in
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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 a XX Xxxx REO Property) 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 Sangertown Square 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
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 XX Xxxx Loan Pair, the related XX Xxxx Non-Trust Mortgage Loan
Noteholder, 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 Master Servicer Remittance Date therein, for deposit in the
Collection Account, an aggregate amount of immediately available funds equal to
the Master Servicer Remittance Amount for such 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 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
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(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 the event that the Master Servicer fails, on any 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 Master
Servicer Remittance Date, to but not including the related Distribution Date.
On the Master Servicer Remittance Date in March of each year
(commencing in March 2004), 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. 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 Master Servicer
Remittance Date, the Master Servicer shall withdraw from the Pool Custodial
Account and remit to the Trustee for deposit in the Excess
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Liquidation Proceeds Account all Excess Liquidation Proceeds received with
respect to the Mortgage Pool during the Collection Period ending on the
Determination Date immediately prior to such Master Servicer Remittance Date.
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 may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. Funds
in the Collection Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Account shall remain uninvested. The Master Servicer shall
give notice to the Trustee, the Special Servicer and the Rating Agencies of the
location of the Pool Custodial Account as of the Closing Date and of the new
location of the Pool Custodial Account prior to any change thereof. As of the
Closing Date, the Collection Account, the Interest Reserve Account and the
Excess Liquidation Proceeds Account shall be located at the Trustee's offices in
Chicago, Illinois. The Trustee shall give notice to the Master Servicer, the
Special Servicer and the Rating Agencies of any change in the location of the
Collection Account, the Interest Reserve Account or the Excess Liquidation
Proceeds Account prior to any change thereof.
SECTION 3.04 A. XX Xxxx Custodial Account.
(a) The Master Servicer shall establish and maintain, with respect to
the XX Xxxx Loan Group, one or more separate accounts (collectively, the "XX
Xxxx 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 XX Xxxx Loan Group, as their interests may appear;
provided that, subject to the last paragraph of this Section 3.04A, the XX Xxxx
Custodial Account may be a sub-account of the Pool Custodial Account. The XX
Xxxx Custodial Account shall be an Eligible Account or, subject to the last
paragraph of this Section 3.04A, a sub-account of an Eligible Account. The
Master Servicer shall deposit or cause to be deposited in the XX Xxxx Custodial
Account, within one Business Day of receipt (in the case of payments or other
collections on the XX Xxxx 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 XX Xxxx Loan Group subsequent to the Cut-off Date
(other than in respect of principal and interest on the XX Xxxx Loan Group due
and payable on or before the Cut-off Date, which payments shall be held pursuant
to the terms of the XX Xxxx 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 XX Xxxx 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 XX Xxxx Co-Lender 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 XX Xxxx 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 XX Xxxx Co-Lender 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 XX Xxxx Loan Group;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of the XX Xxxx Loan Group (other than
Liquidation Proceeds derived from the purchase of a XX Xxxx Trust Mortgage
Loan by or on behalf a XX Xxxx Non-Trust Mortgage Loan Noteholder pursuant
to the XX Xxxx Co-Lender Agreement, in connection with a Material Breach or
a Material Document Defect pursuant to Section 2.03 or as a Specially
Serviced 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 XX Xxxx 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 XX Xxxx Loan Group resulting from a deductible clause
in a blanket hazard policy;
(vii) any amounts required to be transferred from the XX Xxxx 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 any XX Xxxx 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 from any XX Xxxx Non-Trust Noteholder in
accordance with the XX Xxxx Co-Lender Agreement.
The foregoing requirements for deposit in the XX Xxxx Custodial
Account shall be exclusive. Notwithstanding the foregoing, actual payments from
the related Mortgagor in respect of a XX Xxxx 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, not expressly
referred to in the prior paragraph need not be deposited by the Master Servicer
in the XX Xxxx Custodial Account. If the Master Servicer shall deposit into the
XX Xxxx Custodial Account any amount not required to be deposited therein, 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
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transaction fees received by the Master Servicer with respect to any XX Xxxx
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 XX Xxxx Custodial Account shall
be maintained as a segregated account, separate and apart from trust funds
created for mortgage-backed securities of other series and the other accounts of
the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv), (viii) and (ix) of the second preceding paragraph with respect to any XX
Xxxx Loan Pair, the Special Servicer shall promptly, but in no event later than
two Business Days after receipt, remit such amounts to the Master Servicer for
deposit into the XX Xxxx Custodial Account in accordance with the second
preceding paragraph, unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item should not be deposited because of a
restrictive endorsement or other appropriate reason. With respect to any such
amounts paid by check to the order of the Special Servicer, the Special Servicer
shall endorse such check to the order of the Master Servicer, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement or
other appropriate reason. Any such amounts received by the Special Servicer with
respect to an REO Property that relates to a XX Xxxx Loan Pair shall initially
be deposited by the Special Servicer into the XX Xxxx REO Account and thereafter
remitted to the Master Servicer for deposit into the XX Xxxx Custodial Account,
all in accordance with Section 3.16(c).
Notwithstanding that the XX Xxxx Custodial Account may be a
sub-account of the Pool Custodial Account for reasons of administrative
convenience, the XX Xxxx 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 XX Xxxx
Non-Trust Mortgage Loan Noteholders against any losses arising out of the
failure by the Master Servicer to perform its duties and obligations hereunder
as if such accounts were separate accounts. The provisions of this paragraph
shall survive any resignation or removal of the Master Servicer and appointment
of a successor master servicer.
(b) If and when the related Mortgagor elects to defease any XX Xxxx
Loan Pair, 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 XX Xxxx
Non-Trust Mortgage Loan Noteholders and the Special Servicer of the location of
the XX Xxxx Custodial Account when first established and of the new location of
the XX Xxxx 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 the Fiscal Agent, the Trustee and itself, in
that order, for xxxxxxxxxxxx X&X Advances made thereby with respect to the
Mortgage Pool (exclusive of the XX Xxxx Trust Mortgage Loans and any XX
Xxxx REO Trust Mortgage Loans), the Fiscal Agent's, the Trustee's and
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 any related Master
Servicing Fees, Workout Fees and/or Liquidation Fees) received in respect
of the particular Trust Mortgage Loan or REO Trust Mortgage Loan as to
which such P&I Advance was made;
(iii) to pay to itself earned and unpaid Master Servicing Fees
with respect to the Mortgage Pool (exclusive of the Sangertown Square Trust
Mortgage Loan, any Sangertown Square REO Trust Mortgage Loan, the XX Xxxx
Trust Mortgage Loans and any XX Xxxx REO Trust Mortgage Loans), the Master
Servicer's right to payment pursuant to this clause (iii) with respect to
any such Master Servicing Fees being limited to amounts on deposit in the
Pool Custodial Account that are allocable as a recovery of interest on or
in respect of the Trust Mortgage Loan or REO Trust Mortgage Loan as to
which such Master Servicing Fees were earned;
(iv) to pay (A) to the Special Servicer, out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
earned and unpaid Special Servicing Fees in respect of each Specially
Serviced Trust Mortgage Loan and each REO Trust Mortgage Loan that relates
to an Administered REO Property and (B) to itself, out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
any Master Servicing Fee earned in respect of any Serviced Trust Mortgage
Loan or any successor REO Trust Mortgage Loan with respect thereto that
remains unpaid in accordance with clause (iii) above or Section 3.05A, as
applicable, following a Final Recovery Determination made with respect to
such Trust Mortgage Loan or the related REO Property and the deposit into
the Pool Custodial Account of all amounts received in connection with such
Final Recovery Determination;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) any earned and unpaid Workout Fees and Liquidation Fees
in respect of each Specially Serviced Trust Mortgage Loan, each Corrected
Trust Mortgage Loan and/or each REO Trust Mortgage Loan that relates to an
Administered REO Property (other than, if applicable, the BF
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Xxxx Trust Mortgage Loans and any XX Xxxx REO Trust Mortgage Loans), as
applicable, in the amounts and from the sources specified in Section
3.11(c);
(vi) to reimburse the Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, for any unreimbursed Servicing Advances
made thereby with respect to any Serviced Trust Mortgage Loan or
Administered REO Property (other than the XX Xxxx Trust Mortgage Loans or
any XX Xxxx REO Properties), the Fiscal Agent's, the Trustee's, the Master
Servicer's and the Special Servicer's respective rights to reimbursement
pursuant to this clause (vi) with respect to any Servicing Advance being
limited to amounts on deposit in the Pool Custodial Account that represent
payments made by or on behalf of the related Mortgagor to cover the item
for which such Servicing Advance was made, and to amounts on deposit in the
Pool Custodial Account that represent Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and, if applicable, REO Revenues (in each
case, if applicable, net of any Liquidation Fee or Workout Fee payable
therefrom) received in respect of the particular Serviced Trust Mortgage
Loan or Administered REO Property as to which such Servicing Advance was
made;
(vii) to reimburse the Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account, for any unreimbursed
Advances that have been or are determined to be Nonrecoverable Advances
(provided that such amounts may be withdrawn over time in accordance with
Section 3.11(g) or 4.03(d), as applicable);
(viii) to pay the Fiscal Agent, the Trustee, itself and the
Special Servicer, in that order, any unpaid interest accrued and payable in
accordance with Section 3.11(g) or 4.03(d), as applicable, on any Advance
made thereby under this Agreement, the Fiscal Agent's, the Trustee's, the
Master Servicer's and the Special Servicer's respective rights to payment
pursuant to this clause (viii) with respect to interest on any such Advance
being limited to amounts on deposit in the Pool Custodial Account that
represent Default Charges collected on or in respect of the Mortgage Pool
during the Collection Period in which the subject Advance is reimbursed, 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, the Fiscal Agent, the Trustee,
itself and the Special Servicer, in that order, any unpaid interest accrued
and payable in accordance with Section 3.11(g) or 4.03(d), as applicable,
on any Advance made thereby with respect to the Mortgage Pool, but only to
the extent that such Advance has been reimbursed or is being reimbursed and
the 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 a XX
Xxxx Trust Mortgage Loan or any XX Xxxx REO Trust Mortgage Loan, such
payment pursuant to this clause (ix) is to be made only to the extent the
funds on deposit in the XX Xxxx Custodial Account are not sufficient to
make such payment as contemplated by Section 3.05A;
(x) to pay, out of amounts on deposit in the Pool Custodial
Account that represent Default Charges collected on or in respect of the
Mortgage Pool (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
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incurred with respect to a Trust Mortgage Loan or REO Trust Mortgage Loan
and that, if paid from a source other than Default Charges collected with
respect to the Mortgage Pool, 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(g) or 4.03(c), and (C) the fees of any Independent Contractor retained
with respect to any 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 XX Xxxx Mortgaged Property, 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 the XX Xxxx
Loan Group 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 Collection Period, (B)
Prepayment Interest Excesses collected on the Mortgage Pool and/or (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 Administrated 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 XX Xxxx Non-Trust Mortgage Loan;
(xiv) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, for (A) the cost of the Opinion of
Counsel contemplated by Section 11.02(a), (B) the cost of an Opinion of
Counsel contemplated by Section 11.01(a) or 11.01(c) in connection with any
amendment to this Agreement requested by the Master Servicer or the Special
Servicer that protects or is in furtherance of the rights and interests of
Certificateholders, and (C) the cost of recording this Agreement in
accordance with Section 11.02(a); provided that, in the cases of clauses
(xiv)(A) and (xiv)(C), such payment shall be made from the Pool Custodial
Account only to the extent that it is not otherwise paid from the XX Xxxx
Custodial Account by the Master Servicer Remittance Date following the
Collection Period in which the expense is incurred;
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(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
XX Xxxx 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 Sangertown Square Servicer or
the Sangertown Square Trustee, any amount specifically payable or
reimbursable to such party pursuant to the terms of the Sangertown Square
Co-Lender and Servicing Agreement;
(xviii) to reimburse the Fiscal Agent, the Trustee, the Master
Servicer and/or the Special Servicer, as applicable, for unreimbursed
Advances, unpaid Master Servicing Fees and/or any unpaid interest on any
Advances, but only to the extent that such items relate solely to a XX Xxxx
Trust Mortgage Loan, each such party's respective rights to reimbursement
pursuant to this clause (xviii) being limited to amounts on deposit in the
Pool Custodial Account that represent Liquidation Proceeds derived from the
purchase of such XX Xxxx Trust Mortgage Loan by or on behalf of the
Depositor pursuant to Section 2.03 or the sale of such XX Xxxx Trust
Mortgage Loan to or through a XX Xxxx Non-Trust Mortgage Loan Noteholder,
pursuant to the XX Xxxx Co-Lender Agreement, or as a Specially Serviced
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 such items would have been reimbursable to such party in
accordance with clauses (ii), (iii), (vii), (ix) and/or (x), as applicable,
of Section 3.05A (taking into account the order of priority set forth
therein and the sources of funds from which such items may be reimbursed
set forth therein) had the subject Liquidation Proceeds been deposited into
the XX Xxxx Custodial Account, and only to the extent such items have not
been or are not simultaneously being reimbursed to such party pursuant to
Section 3.05A; and provided, further, that the amount of any unpaid Master
Servicing Fees, unreimbursed Advances and/or unpaid interest on Advances
reimbursable to any party pursuant to this clause (xviii) shall be reduced
by any related unpaid Master Servicing Fees, unreimbursed Advances and
unpaid interest on Advances in respect of the subject XX Xxxx Trust
Mortgage Loan which, following the purchase or sale from which the subject
Liquidation Proceeds have been derived, will continue to be payable or
reimbursable under the XX Xxxx Co-Lender Agreement and/or any successor
servicing agreement with respect to the XX Xxxx Loan Group to the Master
Servicer (and which amounts shall no longer be payable hereunder);
(xix) on each 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
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(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 the
Fiscal Agent from the Pool Custodial Account, amounts permitted to be paid to
the Special Servicer (or to any such third party contractor), the Trustee or the
Fiscal Agent therefrom promptly upon receipt of a written statement of a
Servicing Officer of the Special Servicer or of a Responsible Officer of the
Trustee or the Fiscal Agent describing the item and amount to which the Special
Servicer (or such third party contractor), the Trustee or the Fiscal Agent, as
applicable, is entitled (unless such payment to the Special Servicer, the
Trustee (for example, the Trustee Fee) or the Fiscal Agent, as the case may be,
is clearly required pursuant to this Agreement, in which case a written
statement is not required). The Master Servicer may rely conclusively on any
such written statement and shall have no duty to re-calculate the amounts stated
therein.
In connection with any payments required to be made to a Sangertown
Square Servicer or the Sangertown Square Trustee in accordance with Section
3.05(a)(xvii), the Master Servicer may request a written statement from a
responsible officer of the subject Sangertown Square Servicer and/or the
Sangertown Square Trustee, as applicable, describing the nature and amount of
the item for which such party is seeking reimbursement and setting forth the
provision(s) of the Sangertown Square Co-Lender and Servicing 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 Sangertown
Square Servicer or the Sangertown Square Trustee in accordance with Section
3.05(a)(xvii) upon receipt of such a written statement (other than as permitted
under the Sangertown Square Co-Lender and Servicing Agreement); and provided,
further, that to the extent such a written statement from a responsible officer
of the subject Sangertown Square Servicer and/or the Sangertown Square Trustee
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 Fiscal Agent shall keep and
maintain separate accounting, on a loan-by-loan basis, for the purpose of
justifying any request for withdrawal from the Pool Custodial Account for
reimbursements of Advances or payments of interest thereon.
(b) The Trustee may, from time to time, make withdrawals from the
Collection Account for any of the following purposes (in no particular order of
priority):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01 or 9.01, as applicable;
(ii) to pay (A) the Trustee, the Fiscal Agent or any of their
respective directors, officers, employees and agents, as the case may be,
out of general collections on the
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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);
and
(viii) 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 (vii) above from the Collection Account prior to making distributions to
Certificateholders on such Distribution Date.
(c) On each 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).
(d) On each 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
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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 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.
SECTION 3.05A. Permitted Withdrawals From the XX Xxxx Custodial
Account.
The Master Servicer may, from time to time, make withdrawals from the
XX Xxxx 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 XX Xxxx Co-Lender Agreement):
(i) to make remittances each month on or before the Master Servicer
Remittance Date therein or otherwise from time to time, all as contemplated
by Section 4.02 of the XX Xxxx Co-Lender Agreement, to the respective XX
Xxxx Non-Trust Mortgage Loan Noteholders and to the Trustee (as holder of
the XX Xxxx Trust Mortgage Loans or any XX Xxxx REO Trust Mortgage Loans,
as applicable), in accordance with the XX Xxxx 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;
(ii) to reimburse the 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 a XX Xxxx Trust Mortgage Loan or any XX
Xxxx 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 XX Xxxx Custodial Account that are
allocable (pursuant to the related loan documents and/or the XX Xxxx
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 particular XX Xxxx Trust
Mortgage Loan or XX Xxxx REO Trust Mortgage Loan as to which such P&I
Advance was made;
(iii) to pay to itself earned and unpaid Master Servicing Fees with
respect to the XX Xxxx Loan Group, the Master Servicer's respective rights
to payment pursuant to this clause (iii) with respect to any XX Xxxx
Mortgage Loan or XX Xxxx REO Mortgage Loan being limited to amounts on
deposit in the XX Xxxx Custodial Account that were received on or in
respect of such XX Xxxx Mortgage Loan or XX Xxxx REO Mortgage Loan, as the
case may be, and are allocable (pursuant to the related loan documents
and/or the XX Xxxx Co-Lender Agreement) as a recovery of interest thereon;
(iv) to reimburse the 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 any XX Xxxx Trust Mortgage Loan or XX Xxxx
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 XX Xxxx Custodial Account that are allocable (pursuant to
the related loan documents and/or
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the XX Xxxx Co-Lender Agreement) to the particular XX Xxxx Trust Mortgage
Loan or XX Xxxx REO Trust Mortgage Loan as to which such P&I Advance was
made;
(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 XX Xxxx 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 XX Xxxx Loan Group
and/or any XX Xxxx Mortgaged Property that remain unpaid and as to which
specific amounts were (in accordance with the XX Xxxx Co-Lender Agreement)
deposited in the XX Xxxx Custodial Account to pay the same, such payments
to be made out of the specific amounts allocated thereto;
(vii) to reimburse the 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 XX Xxxx Loan Group and/or any XX
Xxxx 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 XX Xxxx Custodial
Account that represent a payment by or on behalf of the related Mortgagor
or any other collection specifically allocated (in accordance with the XX
Xxxx Co-Lender Agreement) to cover the item for which the subject Servicing
Advance was made, and (B) second, to amounts on deposit in the XX Xxxx
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 XX Xxxx Loan Group or any XX Xxxx REO
Property (and, further, with respect to the amounts described in this
clause (vii)(B), first, consistent with the XX Xxxx Co-Lender Agreement,
out of the portion thereof that would otherwise be distributable to the XX
Xxxx Non-Trust Mortgage Loan Noteholders, and second, consistent with the
XX Xxxx Co-Lender Agreement, out of the portion thereof that would
otherwise be distributable to the Trust with respect to the XX Xxxx Trust
Mortgage Loans and/or any XX Xxxx REO Trust Mortgage Loans);
(viii) to reimburse the 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 XX Xxxx 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 XX Xxxx Custodial Account received in respect
of the XX Xxxx Loan Group or related REO Property; provided that,
consistent with the XX Xxxx Co-Lender Agreement, such amounts shall be
reimbursed first, out of the portion thereof that would otherwise be
distributable to the XX Xxxx Subordinate Non-Trust Mortgage Loan
Noteholders, and second, out of the portion thereof that would otherwise be
distributable to the Trust with respect to the XX Xxxx Trust Mortgage Loans
and/or any XX Xxxx REO Trust Mortgage Loans; provided, further, that such
amounts may be withdrawn over time in accordance with Section 3.11(g).
(ix) to pay the 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 XX Xxxx Loan Group or
any XX Xxxx REO Property, any such party's
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respective rights to payment pursuant to this clause (ix) permitted to be
satisfied (A) first, out of any amounts on deposit in the XX Xxxx Custodial
Account that represent Default Charges collected on or in respect of the XX
Xxxx Loan Group, as and to the extent contemplated by Sections 3.26(c) and
(d), (B) second, consistent with the XX Xxxx Co-Lender Agreement, to the
extent that the Default Charges described in the immediately preceding
clause (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 XX Xxxx
Custodial Account that represent any other collections on or in respect of
the XX Xxxx Non-Trust Mortgage Loans or any successor XX Xxxx REO Mortgage
Loans with respect thereto (allocated to and between such XX Xxxx Non-Trust
Mortgage Loans or any successor XX Xxxx REO Mortgage Loans with respect
thereto as provided in the XX Xxxx Co-Lender Agreement), and (C) third,
consistent with the XX Xxxx Co-Lender Agreement, to the extent that the
amounts set forth in clauses (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 XX Xxxx Custodial Account that
represent any other collections on or in respect of the XX Xxxx Trust
Mortgage Loans or any XX Xxxx REO Trust Mortgage Loans (allocated to and
among such XX Xxxx Trust Mortgage Loans or XX Xxxx REO Trust Mortgage
Loans, as the case may be, as provided in the XX Xxxx Co-Lender Agreement);
(x) to pay the 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 any XX Xxxx Trust Mortgage Loan or XX Xxxx 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 XX Xxxx Custodial Account that represent Default Charges collected on
or in respect of the XX Xxxx Loan Group, as and to the extent contemplated
by Sections 3.26(c) and (d), (B) second, consistent with the XX Xxxx
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 XX Xxxx Custodial Account that represent any other collections on or
in respect of the XX Xxxx Non-Trust Mortgage Loans or any successor XX Xxxx
REO Mortgage Loans with respect thereto (allocated to and between such XX
Xxxx Non-Trust Mortgage Loans or any successor XX Xxxx REO Mortgage Loans
with respect thereto as provided in the XX Xxxx Co-Lender Agreement), and
(C) third, consistent with the XX Xxxx Co-Lender Agreement, to the extent
that the amounts set forth in clauses (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 XX Xxxx Custodial Account that
represent any other collections on or in respect of the XX Xxxx Trust
Mortgage Loan or XX Xxxx REO Trust Mortgage Loan as to which the subject
P&I Advance was made (allocated to such XX Xxxx Trust Mortgage Loan or XX
Xxxx REO Trust Mortgage Loan, as the case may be, as provided in the BF
Saul Co-Lender Agreement);
(xi) consistent with the BF Saul Co-Lender Agreement, to pay (first,
out of amounts otherwise payable to the BF Saul Non-Trust Mortgage Loan
Noteholders, and then out of amounts (exclusive of Default Charges)
otherwise payable to the Trust with respect to the BF Saul Trust Mortgage
Loans) for (A) costs and expenses incurred with respect to any BF Saul
Mortgaged Property pursuant to Section 3.09(c) (other than the costs of
environmental testing,
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which are to be covered by, and reimbursable as, a Servicing Advance), (B)
the costs and expenses of obtaining appraisals of any BF Saul Mortgaged
Property pursuant to Section 3.11(h), 3.18(g) or 4.03A(c), as applicable,
(C) any servicing expenses incurred with respect to any BF Saul Mortgage
Loan, BF Saul Mortgaged Property or BF Saul 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 BF Saul 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 XX Xxxx Custodial Account as provided in
Section 3.06(b), but only to the extent of the Net Investment Earnings with
respect to the XX Xxxx Custodial Account for any Collection Period and (B)
Net Default Charges (after application pursuant to Section 3.26(c) and (d))
actually collected that accrued in respect of the XX Xxxx Non-Trust
Mortgage Loans during a period that the XX Xxxx Mortgage Loans constituted
Performing Serviced Mortgage Loans, 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 XX Xxxx
Non-Trust Mortgage Loans during a period that the XX Xxxx Mortgage Loans
were Specially Serviced Mortgage Loans or the XX Xxxx Mortgaged Properties
were REO Properties;
(xiii) consistent with the XX Xxxx Co-Lender Agreement, to pay (first,
out of amounts otherwise payable to the XX Xxxx Non-Trust Mortgage Loan
Noteholders, and then out of amounts (exclusive of Default Charges)
otherwise payable to the Trust with respect to the XX Xxxx Trust Mortgage
Loans and/or any XX Xxxx REO Trust Mortgage Loans) 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 XX Xxxx Loan Group;
(xiv) consistent with the XX Xxxx Co-Lender Agreement, to pay (first,
out of amounts otherwise payable to the XX Xxxx Non-Trust Mortgage Loan
Noteholders, and then out of amounts (exclusive of Default Charges)
otherwise payable to the Trust with respect to the XX Xxxx Trust Mortgage
Loans and/or any XX Xxxx REO Trust Mortgage Loans) for the cost of
recording the XX Xxxx 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 any XX Xxxx Non-Trust Mortgage Loan Noteholder;
(xv) consistent with the XX Xxxx Co-Lender Agreement, to pay (out of
amounts otherwise payable to the XX Xxxx Non-Trust Mortgage Loan
Noteholders) 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 XX Xxxx Non-Trust Mortgage
Loan Noteholders;
(xvi) consistent with the XX Xxxx 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
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respect of the XX Xxxx Trust Mortgage Loans or any XX Xxxx REO Trust
Mortgage Loans, 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(d));
(xvii) consistent with the XX Xxxx 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 XX Xxxx Non-Trust Mortgage Loan Noteholders) all amounts
representing Additional Trust Fund Expenses and/or any other amounts that
relate to the XX Xxxx 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 XX Xxxx Custodial Account under
this Section 3.05A; and
(xviii) to clear and terminate the XX Xxxx Custodial Account at the
termination of this Agreement pursuant to Section 9.01;
provided that, notwithstanding anything to the contrary above, if and to the
extent that the cross-collateralization provisions with respect to any XX Xxxx
Mortgage Loan are terminated, including in connection with a defeasance of a XX
Xxxx Mortgage Loan, then (a) no amounts applied thereto from payments and other
collections on the uncrossed or defeased XX Xxxx Trust Mortgage Loan (including
on related Defeasance Collateral) shall be available to make any payments or
reimbursement due and owing to any party hereto or any third party in respect of
any other XX Xxxx Mortgage Loan, and (b) no amounts applied thereto from
payments and other collections on the uncrossed or defeased XX Xxxx Non-Trust
Mortgage Loan (including on related Defeasance Collateral) shall be available to
make any payments or reimbursement due and owing to any party hereto or any
third party in respect of any other XX Xxxx Mortgage Loan, other than the
related XX Xxxx Trust Mortgage Loan.
The Master Servicer shall keep and maintain separate accounting
records in connection with any withdrawal from the XX Xxxx 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 the Fiscal Agent, as applicable, from the XX Xxxx 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 the 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 the Fiscal Agent, as the case may be, is
entitled (unless any such payment to the Special Servicer, the Trustee or the
Fiscal Agent, as the case may be, is clearly required pursuant to this
Agreement, in which case 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 XX Xxxx Custodial
Account, on a loan-by-loan basis.
Consistent with Section 4.01 of the XX Xxxx Co-Lender Agreement, the
Master Servicer shall transfer from the XX Xxxx Custodial Account, out of
amounts otherwise payable to the XX Xxxx Non-Trust Mortgage Loan Noteholders,
promptly upon such amounts becoming available in the XX Xxxx Custodial Account,
whether received in respect of a XX Xxxx Non-Trust Mortgage Loan (or any
successor XX Xxxx REO Mortgage Loan with respect thereto), any amounts
representing Additional
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Trust Fund Expenses and/or any other amounts that relate to the XX Xxxx 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 XX Xxxx Custodial Account out of the current collections on the XX Xxxx
Non-Trust Mortgage Loans or any successor XX Xxxx REO Mortgage Loans with
respect thereto under this Section 3.05A.
Consistent with the XX Xxxx Co-Lender Agreement, and in accordance
with Sections 4.02(a), 4.02(b) and 4.02(c) of the XX Xxxx Co-Lender Agreement,
the Master Servicer shall, as and when required thereunder, withdraw from the XX
Xxxx Custodial Account and (i) transfer to the Pool Custodial Account all
amounts to be remitted to the Trust as holder of the XX Xxxx Trust Mortgage
Loans and/or any XX Xxxx REO Trust Mortgage Loans and (ii) remit to the other XX
Xxxx Noteholders the respective amounts due and owing to them.
SECTION 3.06. Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Defeasance Deposit Account, the
Custodial Accounts and the REO Accounts.
(a) 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 (each, for purposes of this Section 3.06,
an "Investment Account"), and the Special Servicer may direct in writing any
depository institution maintaining an REO Account (also, for purposes of this
Section 3.06, an "Investment Account"), 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, no later than the Business Day immediately preceding the next
succeeding date on which such funds are required to be withdrawn from such
account pursuant to this Agreement; 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.
Funds in the Collection Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Account will remain uninvested. 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 the XX Xxxx Loan Group, the XX Xxxx
Non-Trust Mortgage Loan Noteholders. The Master Servicer (with respect to
Permitted Investments of amounts in the Servicing Accounts, the Reserve
Accounts, the Defeasance Deposit Account and the Custodial 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 the XX Xxxx Loan Group, the XX Xxxx Non-Trust Mortgage Loan
Noteholders, shall (and the Trustee hereby designates the Master Servicer and
the Special Servicer, as applicable, as the Person that 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". 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
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by, and acting on behalf of, the Trustee and, in the case of any Investment
Account solely related to the XX Xxxx Loan Group, the XX Xxxx Non-Trust Mortgage
Loan Noteholders, 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 the Custodial
Accounts, the Servicing Accounts, the Reserve Accounts and the Defeasance
Deposit Account) or the Special Servicer (in the case of the REO Accounts)
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 or the Special Servicer, as
the case may be, that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter
on deposit in the Investment Account.
(b) Whether or not the Master Servicer directs the investment of funds
in any of the Servicing Accounts, the Reserve Accounts, the Defeasance Deposit
Account or the Custodial 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 Collection 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), 3.05(a) or 3.05A, as applicable. Whether or not the
Special Servicer directs the investment of funds in any of the REO Accounts,
interest and investment income realized on funds deposited therein, to the
extent of the Net Investment Earnings, if any, for such Investment Account for
each Collection 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). 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) and the Special
Servicer (in the case of the REO Accounts) shall promptly deposit therein from
its own funds, without right of reimbursement, no later than the end of the
Collection Period during which such loss was incurred, the amount of the Net
Investment Loss, if any, for such Investment Account for such Collection 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
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performance required under any Permitted Investment, the Trustee may, and
subject to Section 8.02, upon the request of Certificateholders entitled to a
majority of the Voting Rights allocated to a Class, shall take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Available Distribution Amount and the Master Servicer Remittance Amount,
the amounts so invested shall be deemed to remain on deposit in such Investment
Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage; Environmental Insurance.
(a) The Master Servicer shall, consistent with the Servicing Standard,
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 best 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, 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, 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 XX
Xxxx Mortgaged Property, on behalf of the Certificateholders and the affected XX
Xxxx Non-Trust Mortgage Loan Noteholders) 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 (in its reasonable
judgment and in accordance with the Servicing Standard) to constitute an
Acceptable Insurance Default. Any Controlling Class Certificateholder may
request that earthquake insurance be secured for one or more Mortgaged
Properties (other than the Sangertown Square Mortgaged Properties) by the
related Mortgagor, to the extent such insurance may reasonably be obtained 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
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Standard, shall also cause to be maintained for each Administered REO Property
no less insurance coverage than was previously required of the Mortgagor under
the related Mortgage; provided that such insurance is available at commercially
reasonable rates and the subject hazards are at the time commonly insured
against for properties similar to the subject Administered REO Property located
in or around the region in which such Administered REO Property is located (or,
in the case of all-risk insurance or other insurance that covers acts of
terrorism, such insurance is available at a commercially reasonable rate or 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, 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)
or 3.04A(a), as applicable, in the case of amounts received in respect of a
Serviced Mortgage Loan, or in the applicable REO Account in accordance with
Section 3.16(b), in the case of amounts received in respect of an Administered
REO Property. Any cost incurred by the Master Servicer or the Special Servicer
in maintaining any such insurance (including any earthquake insurance maintained
at the request of a Controlling Class Certificateholder) 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 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,
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 blanket policy may contain a deductible clause (not in excess
of a
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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 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 XX Xxxx Mortgaged Property, the affected XX Xxxx Non-Trust Mortgage
Loan Noteholders, claims under any such blanket 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, 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 Xxx seller-servicer of multifamily mortgage
loans, or in such other form and amount as would not cause an Adverse Rating
Event (as evidenced in writing from each Rating Agency). Each of the Master
Servicer and the Special Servicer shall be deemed to have complied with the
foregoing provision if an Affiliate thereof has such fidelity bond coverage and,
by the terms of such fidelity bond, the coverage afforded thereunder extends to
the Master Servicer or the Special Servicer, as the case may be.
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, 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, employees and agents in connection with its servicing obligations
hereunder, which policy or policies shall be in such form and amount as would
permit it to be a qualified Xxxxxx Mae seller-servicer of multifamily mortgage
loans, or in such other form and amount as would not cause an Adverse Rating
Event (as evidenced in writing from each Rating Agency). Each of the Master
Servicer and the Special Servicer shall be deemed to have complied with the
foregoing 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.
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Notwithstanding the foregoing, for so long as the long-term debt
obligations of the Master Servicer or Special Servicer, 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, 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
Sangertown Square 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 Sangertown Square 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 Sangertown Square Trust Mortgage Loan) and take all such
actions as may be required to comply with the terms and provisions of such
policies in order to maintain such policies in full force and effect and to make
claims thereunder.
In the event that either the Master Servicer or the Special Servicer
receives notice of a termination of any Environmental Insurance Policy with
respect to an Environmentally Insured Mortgage Loan (other than, if applicable,
the Sangertown Square Trust Mortgage Loan), then the party receiving such notice
shall, within five 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
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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 Sangertown Square 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 that
expressly permits, with the lender's consent, subject to the conditions
described in the loan documents, the transfer of the related Mortgaged Property
to, and assumption of such Mortgage Loan by, another Person or transfers of
certain interests in such Mortgagor, the Master Servicer receives a request from
a Mortgagor for consent to such a transfer and/or assumption, 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 and/or Section 6.11A, 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 shall be authorized to enter into an assumption or substitution
agreement with the Person, which shall be a Single Purpose Entity, to whom the
related Mortgaged Property has been or is proposed to be conveyed and/or release
the original Mortgagor from liability under such 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 the XX Xxxx Loan Group, the XX Xxxx Non-Trust
Mortgage Loan Noteholders, 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
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Cross-Collateralized Mortgage Loan shall be made without the assumption of all
other Serviced Mortgage Loans making up the related Cross-Collateralized Group.
Further, subject to the terms of the related loan documents and applicable law,
no assumption of a Serviced Mortgage Loan shall be made or transfer of interest
in a Mortgagor approved, unless all costs in connection therewith, including any
arising from seeking Rating Agency confirmation, are paid by the related
Mortgagor.
(b) If, with respect to any Performing Serviced Mortgage Loan that
contains express restrictions on transfers of the related Mortgaged Property
and/or transfers of interests in the related Mortgagor, the Master Servicer
receives a request from the related Mortgagor for consent to such a transfer,
then the Special Servicer (and not the Master Servicer), on behalf of the
Trustee (as mortgagee of record on behalf of the Certificateholders and, in the
case of a XX Xxxx Mortgaged Property, the XX Xxxx Non-Trust Mortgage Loan
Noteholders), shall, to the extent permitted by applicable law, enforce such
restrictions, 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, together with a Review Package
in respect thereof, to the Trustee, each Rating Agency, the Controlling Class
Representative and, with respect to the XX Xxxx Loan Group, the XX Xxxx
Non-Trust Mortgage Loan Noteholders); provided that any such waiver of such
restrictions shall be subject to Section 3.08(d), Section 6.11 and/or Section
6.11A, in each case if and as applicable.
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 (other than the Sangertown Square 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 and/or Section 6.11A, 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 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 the XX Xxxx Loan Group, the XX Xxxx
Non-Trust Mortgage Loan Noteholders, 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 Mortgage Loans making up the related
Cross-Collateralized Group. Further, subject to the terms of the related loan
documents and applicable
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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) With respect to all of the Serviced Mortgage Loans, the Special
Servicer, on behalf of the Trustee (as mortgagee of record on behalf of the
Certificateholders and, in the case of a XX Xxxx Mortgaged Property, the XX Xxxx
Non-Trust Mortgage Loan Noteholders) 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, 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 the XX Xxxx Loan Group, the XX Xxxx Non-Trust Mortgage Loan
Noteholders); provided that any such waiver of such restrictions shall be
subject to Section 3.08(d), Section 6.11 and/or Section 6.11A, in each case if
and as applicable. Whenever the Master Servicer becomes aware of a further
encumbrance on a Mortgaged Property, or becomes aware that there is going to be
a further encumbrance on a Mortgaged Property, the Master Servicer shall
promptly notify the Special Servicer of such further encumbrance and deliver to
the Special Servicer all documents and records (or copies thereof) in the Master
Servicer's possession regarding the further encumbrance and such other documents
(or copies thereof) in the Master Servicer's possession regarding the related
Mortgage Loan as the Special Servicer shall reasonably require in order to
consider the request. 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 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 the
Special Servicer shall not 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, 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. Neither the Master Servicer nor
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the Special Servicer has the authority to perform any of the actions set forth
above in this paragraph with respect to the Sangertown Square 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, 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 and 6.11A, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Specially Serviced Mortgage Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, including
pursuant to Section 3.20; provided that neither the Master Servicer nor the
Special Servicer shall, with respect to any Serviced Mortgage Loan that
constitutes an ARD Mortgage Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Additional Interest (other
than the making of requests for its collection) unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
ARD Mortgage Loan is, in the good faith and reasonable judgment of the Special
Servicer, necessary, appropriate and consistent with the Servicing Standard or
(ii) all other amounts due under such ARD Mortgage Loan have been paid, the
payment of such Additional Interest has not been forgiven in accordance with
Section 3.20 and, in the good faith and reasonable judgment of the Special
Servicer, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated interest accrued on Advances. Subject
to Section 3.11(h), the Special Servicer shall request that the Master Servicer
advance all costs and expenses incurred by it in any such proceedings, and the
Master Servicer shall be entitled to reimbursement therefor as provided in
Section 3.05(a) or Section 3.05A, as applicable. The Special Servicer shall be
responsible, consistent with the Servicing Standard, for determining whether to
exercise any rights it may have under the cross-collateralization and/or
cross-default provisions of a Cross-Collateralized Mortgage Loan. Nothing
contained in this Section 3.09 shall be construed so as to require the Special
Servicer, on behalf of the Certificateholders and, in the case of a XX Xxxx
Mortgaged Property, on behalf of the affected XX Xxxx Non-Trust Mortgage Loan
Noteholders, 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 Serviced Mortgage Loan, whether for
purposes of bidding at foreclosure or otherwise, it may have an
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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 Trust Mortgage Loan becomes a Required Appraisal Loan,
then the Special Servicer shall (i) obtain or conduct, as applicable, a Required
Appraisal within 60 days of such Serviced Trust Mortgage Loan's becoming a
Required Appraisal Loan (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 Trust Mortgage Loan or any successor REO Trust
Mortgage Loan with respect thereto, 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 XX Xxxx Mortgaged Property, the XX Xxxx Non-Trust Mortgage
Loan Noteholders, 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 a XX Xxxx Mortgaged Property, the XX Xxxx Non-Trust Mortgage
Loan Noteholders, of any resulting Appraisal Reduction Amount in respect of the
subject Required Appraisal Loan (and, in the case of a XX Xxxx Trust Mortgage
Loan or any XX Xxxx REO Trust Mortgage Loan, in respect of the entire XX Xxxx
Loan Group (calculated as if it was a single Serviced Trust Mortgage Loan)).
Such calculations by the Special Servicer shall be subject to review and
confirmation by the Master Servicer, provided that the Master Servicer may rely
on any information provided by the Special Servicer. The Master Servicer shall,
at the direction of the Special Servicer, advance the cost of each such Required
Appraisal and updated Required Appraisal; provided, however, that such expense
will be subject to reimbursement to the Master Servicer as a Servicing Advance
out of the related Custodial Account pursuant to Section 3.05(a) or Section
3.05A, as applicable. At any time that an Appraisal Reduction Amount exists with
respect to any Required Appraisal Loan, the Controlling Class Representative
may, at its own expense, obtain and deliver to the Master Servicer, the Special
Servicer and the Trustee an appraisal that satisfies the requirements of a
"Required Appraisal", and upon the written request of the Controlling Class
Representative, the Special Servicer shall recalculate the Appraisal Reduction
Amount in respect of such Required Appraisal Loan based on the appraisal
delivered by such party and shall notify the Trustee, the Master Servicer and
the Controlling Class Representative of such recalculated Appraisal Reduction
Amount. At any time that an Appraisal Reduction Amount exists with respect to
the XX Xxxx Loan Group (calculated as if it was a single Serviced Trust Mortgage
Loan) during a period that any XX Xxxx Trust Mortgage Loan constitutes a
Required Appraisal Loan, any XX Xxxx Non-Trust Mortgage Loan Noteholder may, at
its own expense, obtain and deliver to the Master Servicer, the Special Servicer
and the Trustee, an appraisal that satisfies the requirements of a "Required
Appraisal", and upon the written request of such XX Xxxx Non-Trust Mortgage Loan
Noteholder, the Special Servicer shall recalculate the Appraisal Reduction
Amount in respect of the XX Xxxx Loan Group (calculated as if it was a single
Serviced Trust Mortgage Loan),
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based on the appraisal delivered by such XX Xxxx Non-Trust Mortgage Loan
Noteholder, and shall notify the Trustee, the Master Servicer and the XX Xxxx
Non-Trust Mortgage Loan Noteholders 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 XX Xxxx Mortgaged Property, the
affected XX Xxxx Non-Trust Mortgage Loan Noteholders) 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.
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 XX Xxxx Mortgaged Property, on behalf of the
affected XX Xxxx Non-Trust Mortgage Loan Noteholders), 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 XX Xxxx Mortgaged Property, on behalf of the affected XX Xxxx
Non-Trust Mortgage Loan Noteholders), 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 and/or Section 6.11A, in each case if and
as applicable, and the Special Servicer has previously determined (as evidenced
by an Officer's Certificate to such effect delivered to the Trustee (and, in the
case of a XX Xxxx Mortgaged Property, to the affected XX Xxxx Non-Trust Mortgage
Loan Noteholders) 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
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Assessment shall be delivered to the Trustee, the Master Servicer and, in the
case of a XX Xxxx Mortgaged Property, the XX Xxxx Non-Trust Mortgage Loan
Noteholders), 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 XX Xxxx Mortgaged Property is involved, to the
Certificateholders and the affected XX Xxxx Non-Trust Mortgage Loan
Noteholders), as a collective whole, on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders (or, if a XX Xxxx Mortgaged Property is involved, to the
Certificateholders and the affected XX Xxxx Non-Trust Mortgage Loan
Noteholders), 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 XX Xxxx
Mortgaged Property is involved, to the Certificateholders and the affected
XX Xxxx Non-Trust Mortgage Loan Noteholders), as a collective whole, on a
present value basis (the relevant discounting of anticipated collections
that will be distributable to Certificateholders (or, if a XX Xxxx
Mortgaged Property is involved, to the Certificateholders and the affected
XX Xxxx Non-Trust Mortgage Loan Noteholders), 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 or
Section 3.05A, as applicable (or, in the case of a XX Xxxx Mortgaged Property,
to the extent the funds in the XX Xxxx 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
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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 XX Xxxx Non-Trust Mortgage Loan is affected, the affected XX Xxxx Non-Trust
Mortgage Loan Noteholders), subject to Section 6.11 and/or Section 6.11A, 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 XX Xxxx Mortgaged Property is affected, the
XX Xxxx Non-Trust Mortgage Loan Noteholders, 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 Sangertown Square Mortgaged Property) required by Section 6050H
of the Code and the reports of foreclosures and abandonments of any Mortgaged
Property (other than the Sangertown Square Mortgaged Property) 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 Serviced Mortgage Loan or Administered REO
Property, it shall promptly notify the Trustee, the Master Servicer and, if the
XX Xxxx Loan Group is affected, the XX Xxxx Non-Trust Mortgage Loan Noteholders.
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
the XX Xxxx Loan Group is affected, the XX Xxxx Non-Trust Mortgage Loan
Noteholders, 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,
in the case of a XX Xxxx Non-Trust Mortgage Loan, the related XX Xxxx Non-Trust
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Mortgage Loan Noteholder) by a certification (which certification shall be in
the form of a Request for Release in the form of Exhibit D-1 attached hereto and
shall be accompanied by the form of a release or discharge and shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
applicable Custodial Account pursuant to Section 3.04(a) or Section 3.04A(a), as
applicable, have been or will be so deposited) of a Servicing Officer (a copy of
which certification shall be delivered to the Special Servicer) and shall
request delivery to it of the related Mortgage File and, in the case of a XX
Xxxx Non-Trust Mortgage Loan, the original of the Mortgage Note for such XX Xxxx
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 XX Xxxx Non-Trust Mortgage Loan, the
Trustee shall cause the related XX Xxxx Non-Trust Mortgage Loan Noteholder to
release the Mortgage Note for such XX Xxxx 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 XX Xxxx 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 XX
Xxxx Non-Trust Mortgage Loan, the Trustee shall cause the related XX Xxxx
Non-Trust Mortgage Loan Noteholder to release the original of the Mortgage Note
for such XX Xxxx 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 a XX Xxxx Non-Trust Mortgage Loan to the related XX Xxxx
Non-Trust Mortgage Loan Noteholder), or the delivery to the Trustee (and, if
applicable, to the related XX Xxxx Non-Trust Mortgage Loan Noteholder) of a
certificate of a Servicing Officer of the Special Servicer stating that such
Serviced Trust Mortgage Loan was liquidated and that all amounts received or to
be received in connection with such liquidation that are required to be
deposited into the related Custodial Account pursuant to Section 3.04(a) or
Section 3.04A(a), as applicable, have been or will be so deposited, or that the
related Mortgaged Property has become an REO Property, the Request for Release
shall be released by the Trustee or related Custodian to the Master Servicer or
the Special Servicer, as applicable.
(c) Within seven Business Days (or within such shorter period (but no
less than three Business Days) as execution and delivery can reasonably be
accomplished if the Special Servicer notifies the Trustee (and, in the case of a
XX Xxxx Loan Pair, the related XX Xxxx Non-Trust Mortgage Loan Noteholder) of an
exigency) of the Special Servicer's request therefor, the Trustee shall execute
and deliver to the Special Servicer (or the Special Servicer may execute and
deliver in the name of the Trustee (on behalf of the Certificateholders and, in
the case of a XX Xxxx Mortgaged Property, the affected XX Xxxx Non-Trust
Mortgage Loan Noteholders) 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
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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 XX
Xxxx Non-Trust Mortgage Loan Noteholder. Together with such documents or
pleadings, the Special Servicer shall deliver to the Trustee (and, if
applicable, any affected XX Xxxx 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 the XX Xxxx
Loan Group, also on behalf of the XX Xxxx Non-Trust Mortgage Loan Noteholders)
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 Sangertown
Square Co-Lender and Servicing Agreement and the Sangertown Square Servicing
Agreement, and as appropriate for enforcing the terms of the Sangertown Square
Trust Mortgage Loan, any Sangertown Square Servicer or the Sangertown Square
Non-Trust Mortgage Loan Noteholder requests delivery to it of the original
Mortgage Note for the Sangertown Square 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 Sangertown Square 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 Sangertown
Square Servicer or such Sangertown Square 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
Serviced Mortgage Loan (including each Specially Serviced Mortgage Loan) and
each successor REO Mortgage Loan with respect to a Serviced Mortgage Loan. As to
each such Mortgage Loan and REO Mortgage 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
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Revenues allocable as interest on each such REO Mortgage Loan. The Master
Servicer shall be entitled to recover unpaid Master Servicing Fees in respect of
any such Mortgage Loan or REO Mortgage Loan out of that portion of related
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds allocable as
recoveries of interest, to the extent permitted by Section 3.05(a) or Section
3.05A, as applicable, and in the case of a Trust Mortgage Loan or an REO Trust
Mortgage Loan, out of such other amounts as may be permitted by Section 3.05(a).
The right to receive the Master Servicing Fee may not be transferred in whole or
in part except in connection with the transfer of all of the Master Servicer's
responsibilities and obligations under this Agreement. Notwithstanding anything
herein to the contrary, no Master Servicing Fee shall be calculated or payable
hereunder based upon or with respect to any Mortgage Loan or REO Mortgage Loan
that comprises the Sangertown Square Loan Pair.
(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 and accrued during the time that such Serviced Mortgage Loan was a
Performing Serviced Mortgage Loan, (ii) 100% of each modification fee or
extension 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) 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 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 XX Xxxx Loan Pair, on behalf of the
Trust and the related XX Xxxx Non-Trust Mortgage Loan Noteholder) 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 Collection
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 Collection Period).
With regard to the Sangertown Square Trust Mortgage Loan, as and to
the extent provided in the Sangertown Square Servicing Agreement, amounts in the
nature of the foregoing are payable to a Sangertown Square 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
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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 shall be
payable monthly out of general collections on the Mortgage Loans and any REO
Properties (or, in the case of the Special Servicing Fees in respect of the XX
Xxxx Non-Trust Mortgage Loans or any successor REO Mortgage Loans with respect
thereto, solely out of collections relating to the XX Xxxx Non-Trust Mortgage
Loans or any successor REO Mortgage Loans with respect thereto) on deposit in
the applicable Custodial Account pursuant to Section 3.05(a) or Section 3.05A,
as applicable. The Sangertown Square Special Servicer shall be entitled to the
special servicing fee for each Mortgage Loan or REO Mortgage Loan, as
applicable, constituting the Sangertown Square Loan Pair as provided in the
Sangertown Square Servicing Agreement.
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, 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
purchase of any Trust Mortgage Loan by a Purchase Option Holder 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 or the UBS Mortgage Loan Seller
pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement, by a XX Xxxx
Non-Trust Mortgage Loan Noteholder or its designee pursuant to the XX Xxxx
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. The Workout Fee with respect to any Corrected
Mortgage Loan will cease to be payable if such Corrected Mortgage Loan again
becomes a Specially Serviced Mortgage Loan or if the related Mortgaged Property
becomes an REO Property; provided that a new Workout Fee will become payable if
and when the particular Serviced Mortgage Loan again becomes a Corrected
Mortgage Loan. If the Special Servicer is terminated or removed other than for
cause (and other than as a result of an Event of Default under Sections
7.01(a)(x) or 7.01(a)(xi)), or resigns in accordance with the first sentence of
the first paragraph of Section 6.04, then it shall retain the right to receive
any and all Workout Fees payable in respect of Serviced Mortgage Loans that
became Corrected Mortgage Loans during the period that it acted as Special
Servicer and were still such at the time of such termination, removal or
resignation (and the successor Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
Serviced Mortgage Loan ceases to be payable in accordance with the preceding
sentence.
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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, Insurance Proceeds or Condemnation Proceeds.
As to each such Specially Serviced Mortgage Loan or Administered REO Property,
the Liquidation Fee shall be payable from, and shall be calculated by
application of the Liquidation Fee Rate to, such full, partial or discounted
payoff and/or such Net Liquidation Proceeds, Insurance Proceeds or Condemnation
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 such 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 purchase of any such
Specially Serviced Mortgage Loan or REO Property by a Purchase Option Holder
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 a XX Xxxx Non-Trust Mortgage Loan Noteholder or its designee
pursuant to the XX Xxxx Co-Lender Agreement, 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 such case, if the repurchase arises out of a
Material Breach or Material Document Defect, prior 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), 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; and provided, further, that,
in connection with any purchase of a Trust Mortgage Loan 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, if the repurchase arises
out of a Material Breach or Material Document Defect, 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, (a) any Workout Fee and/or Liquidation
Fee payable in accordance with the two preceding paragraphs with respect to a
cross-collateralized XX Xxxx Trust Mortgage Loan or any successor REO Mortgage
Trust Loan with respect thereto shall be paid, first from collections received
on the cross-collateralized XX Xxxx Non-Trust Mortgage Loans or any successor
REO Mortgage Loans with respect thereto pursuant to Section 3.05A; and then,
from collections received on such XX Xxxx Trust Mortgage Loan or REO Trust
Mortgage Loan, as the case may be, pursuant to Section 3.05A or, if applicable,
Section 3.05(a); (b) any Workout Fee and/or Liquidation Fee payable in
accordance with the two preceding paragraphs with respect to an uncrossed or
defeased XX Xxxx Trust Mortgage Loan or any successor REO Mortgage Trust Loan
with respect thereto shall be paid, first from collections received on the
related XX Xxxx Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto pursuant to Section 3.05A; and then, from collections received
on such XX Xxxx Trust Mortgage Loan or any successor REO Mortgage Trust Loan
pursuant to Section 3.05A or, if applicable, Section 3.05(a); and (c) any
Workout Fee and/or Liquidation Fee payable with respect to a XX Xxxx Non-Trust
Mortgage Loan or any successor REO Mortgage Loan with respect thereto may be
paid in accordance with the two preceding paragraphs solely from collections
received
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on the XX Xxxx Non-Trust Mortgage Loans or any successor REO Mortgage Loans with
respect thereto or, if such XX Xxxx Non-Trust Mortgage Loan has been uncrossed
or defeased, from collections received on such XX Xxxx Non-Trust Mortgage Loan.
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 comprising the
Sangertown Square Loan Pair.
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 Mortgage Loan or
any successor REO Mortgage Loan with respect thereto that accrued while the
subject loan was a Specially Serviced Mortgage Loan or an REO Mortgage Loan,
(ii) with respect to any Specially Serviced Mortgage Loan, 100% of any and all
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 the XX Xxxx Loan Group, on behalf of the
Trust and the XX Xxxx Non-Trust Mortgage Loan Noteholders) 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), and (iii) any and all assumption fees,
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) or
Section 3.04A(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 Collection 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
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
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or the Special Servicer, as applicable, within three Business Days after such
notice is given to the Master Servicer or the Special Servicer, as the case may
be, then (subject to Section 3.11(h)) the Trustee shall make such Servicing
Advance. If the Trustee fails to make any Servicing Advance required to be made
under this Agreement, then (subject to Section 3.11(h)) the Fiscal Agent shall
make such Servicing Advance within one Business Day of such failure by the
Trustee and, if so made, the Trustee shall be deemed not to be in default under
this Agreement.
(g) The Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, compounded annually, accrued on the amount of
each Servicing Advance made thereby (with its own funds) for so long as such
Servicing Advance is outstanding, such interest to be payable: (i) first, in
accordance with Sections 3.05 and 3.26, out of any Default Charges on deposit in
the Pool Custodial Account that were collected on or in respect of the Mortgage
Pool during the same Collection Period in which such Servicing Advance is
reimbursed, 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 the
XX Xxxx Loan Group or a XX Xxxx Mortgaged Property, then such interest shall
first be payable out of amounts on deposit in the XX Xxxx Custodial Account in
accordance with Section 3.05A. The Master Servicer shall reimburse itself, the
Special Servicer, the Trustee or the Fiscal Agent, as appropriate and in
accordance with Section 3.03, Section 3.05(a) or Section 3.05A, as applicable,
for any Servicing Advance as soon as practicable after funds available for such
purpose are deposited in the related 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 (as contemplated by Section
3.05(a)(vii)), any of the Master Servicer, the Trustee or the Fiscal Agent, as
applicable, may, in its sole discretion, elect to obtain reimbursement for such
Nonrecoverable Servicing Advance over a period of time 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 Trustee or the Fiscal Agent, as applicable, may, in its sole
discretion, decide to obtain reimbursement immediately. The fact that a decision
to recover such Nonrecoverable Servicing Advance over time, or not to do so,
benefits some Classes of Certificateholders to the detriment of other Classes
shall not constitute a violation of the Servicing Standard by the Master
Servicer, or a breach of any fiduciary duty owed to the Certificateholders by
the Trustee or the Fiscal Agent, or a breach of any other contractual obligation
owed to the Certificateholders by any party to this Agreement.
(h) Notwithstanding anything herein to the contrary, none of the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent shall be
required to make out of its own funds any Servicing Advance that would, if made,
constitute a Nonrecoverable Servicing Advance. The determination by the Master
Servicer or the Special Servicer that it has made 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 the XX Xxxx Loan Group, the XX Xxxx Non-Trust Mortgage Loan
Noteholders), 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
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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 the Fiscal Agent
shall be entitled to rely, conclusively, on any determination by the Master
Servicer or the Special Servicer that a Servicing Advance, if made, would be a
Nonrecoverable Servicing Advance; provided, however, that if the Master Servicer
or the Special Servicer has failed to make a Servicing Advance for reasons other
than a determination by the Master Servicer or the Special Servicer, as
applicable, that such Servicing Advance would be a Nonrecoverable Advance, the
Trustee or the Fiscal Agent, as applicable, shall make such Servicing Advance
within the time periods required by Section 3.11(f) unless the Trustee or the
Fiscal Agent, in good faith, makes a determination that such Servicing Advance
would be a Nonrecoverable Advance.
(i) Notwithstanding anything set forth herein to the contrary, the
Master Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Mortgage Loan or an Administered REO Property is involved) pay directly
out of the Pool Custodial Account or the XX Xxxx Custodial Account, as
applicable in accordance with Sections 3.05(a) and 3.05A, 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 the
XX Xxxx Custodial Account, is in the best interests of the Certificateholders
and the affected XX Xxxx Non-Trust Mortgage Loan Noteholders (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 the XX Xxxx
Non-Trust Mortgage Loan Noteholders (if affected), setting forth the basis for
such determination and accompanied by any information that such Person may have
obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying information) of the Master Servicer shall also be
promptly delivered to the Special Servicer, and a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the Master Servicer. The Master Servicer may conclusively
rely on any information in this regard provided by the Special Servicer (if
other than the Master Servicer or an Affiliate thereof).
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property (other than the Sangertown Square
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
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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 XX Xxxx Non-Trust Mortgage Loan
Noteholders (if the subject Mortgaged Property relates to the XX Xxxx Loan
Group) 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 XX Xxxx Non-Trust Mortgage Loan Noteholders (if the subject
Mortgaged Property relates to the XX Xxxx Loan Group) 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
XX Xxxx Non-Trust Mortgage Loan Noteholder, in each case upon request.
Within 30 days after receipt by the Master Servicer of any annual
operating statements with respect to any Mortgaged Property (other than the
Sangertown Square 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 REO Property (with, upon request, the annual operating statements
attached thereto as an exhibit).
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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 Sangertown Square 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 such
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 such 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, any Controlling Class
Certificateholder and any XX Xxxx Non-Trust Mortgage Loan Noteholder, in each
case upon request.
(b) Not later than 2:00 p.m. (New York City time) on the second
Business Day prior to each 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 end of the
preceding calendar month: (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
Delinquent Loan Status Report, CMSA Comparative Financial Status Report and Loan
Payoff Notification Report (in each case combining the reports prepared by the
Special Servicer and the Master Servicer); and (iii) a CMSA Servicer Watch List
with information that is current as of the related Determination Date with
respect to the Trust Mortgage Loans. 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 Sangertown Square Servicing Agreement)
from the applicable Sangertown Square Servicer with respect to the Sangertown
Square Trust Mortgage Loan or any Sangertown Square REO Trust Mortgage Loan. The
Master Servicer shall include on one of such reports updated information as
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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 Sangertown Square Mortgage Loan, by a Sangertown Square
Servicer pursuant to the Sangertown Square 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 Sangertown Square Servicer pursuant to the Sangertown
Square 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 Sangertown
Square 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 Sangertown Square Servicer's
failure to provide any report required to be provided to the holder of the
Sangertown Square Trust Mortgage Loan pursuant to the Sangertown Square
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.
SECTION 3.12A. Delivery of Certain Reports to the XX Xxxx Non-Trust
Mortgage Loan Noteholders.
(a) The Master Servicer shall promptly deliver to each XX Xxxx
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 XX Xxxx Mortgaged Properties.
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(b) If the Mortgage Loans forming the XX Xxxx Loan Group constitute
Specially Serviced Mortgage Loans, or if the XX Xxxx Mortgaged Property has
become an REO Property, then each calendar month, not later than 2:00 p.m. (New
York City time) on the second Business Day prior to each Determination Date, the
Special Servicer shall deliver or cause to be delivered to the Master Servicer
the following reports with respect to the XX Xxxx Loan Group and/or the XX Xxxx
Mortgaged Properties, providing the required information as of the end of the
preceding calendar month: (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 the XX Xxxx Loan Group constitute Specially Serviced
Mortgage Loans, or if the XX Xxxx Mortgaged Properties have become REO
Properties, then each calendar month, not later than 10:00 a.m. (New York City
time) on the second Business Day prior to the 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
the XX Xxxx Loan Group and/or the XX Xxxx Mortgaged Properties: (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 Business Day
prior to each Master Servicer Remittance Date, the Master Servicer shall, with
respect to the XX Xxxx Loan Group, prepare all XX Xxxx 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 the XX Xxxx Non-Trust Mortgage
Loan Noteholders 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 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 XX Xxxx Non-Trust Mortgage Loan
Noteholders.
(a) On each Master Servicer Remittance Date, the Master Servicer shall
forward to each XX Xxxx Non-Trust Mortgage Loan Noteholder all XX Xxxx Servicing
Reports prepared with respect
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to the XX Xxxx Loan Group, 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 XX Xxxx
Non-Trust Mortgage Loan Noteholder and each other, on or before April 30 of each
year, beginning in 2004 (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, 2003, inclusive) and, in particular, of its performance
under this Agreement, has been made under such officer's supervision, (ii) to
the best of such officer's knowledge, based on such review, the Master Servicer
or the Special Servicer, as the case may be, has fulfilled all of its material
obligations under this Agreement in all material respects throughout such
preceding calendar year or portion thereof (or, if there has been a default in
the fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof), and (iii) the Master Servicer
or the Special Servicer, as the case may be, has received no notice regarding
the qualification, or challenging the status, of any REMIC Pool as a REMIC or
the Grantor Trust 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 2003.
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SECTION 3.14. Reports by Independent Public Accountants.
On or before April 30 of each year, beginning in 2004 (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 XX Xxxx 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 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
2003.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
reports delivered pursuant to this Section 3.14 to requirements imposed by the
Commission on the Depositor in connection with the Depositor's reporting
requirements in respect of the Trust Fund pursuant to the Exchange Act, provided
that the Master Servicer and Special Servicer shall each be entitled to charge
the Depositor for any reasonable additional costs and expenses incurred in
affording the Depositor such cooperation.
SECTION 3.15. Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Underwriters, the Rating Agencies, the Depositor, any
Certificateholder, any XX Xxxx 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 XX Xxxx Non-Trust Mortgage Loan Noteholder,
access to any records regarding the Serviced Mortgage Loans and the servicing
thereof within its control (which
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access shall be limited, in the case of any XX Xxxx Non-Trust Mortgage Loan
Noteholder or any regulatory authority seeking such access in respect of a XX
Xxxx Non-Trust Mortgage Loan Noteholder, to records relating to the related XX
Xxxx 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 XX Xxxx 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
XX Xxxx Non-Trust Mortgage Loan Noteholder or any regulatory authority that may
exercise authority over a Certificateholder, a Certificate Owner or a XX Xxxx
Non-Trust Mortgage Loan Noteholder, the Master Servicer and the Special Servicer
each may require payment from such Certificateholder, a Certificate Owner or a
XX Xxxx 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.
SECTION 3.16. Title to REO Property; REO Accounts.
(a) If title to any Mortgaged Property (other than the Sangertown
Square 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 XX Xxxx Mortgaged Property, on behalf of the affected XX Xxxx
Non-Trust Mortgage Loan Noteholders. The Special Servicer, on behalf of the
Trust Fund and, in the case of any XX Xxxx REO Property, the affected XX Xxxx
Non-Trust Mortgage Loan Noteholders, 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 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 REO Property subsequent to the end of such third succeeding year
will not result in the imposition of
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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, 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 the Sangertown Square Mortgaged
Property or a XX Xxxx Mortgaged Property), the Special Servicer shall establish
and maintain one or more accounts (collectively, the "Pool REO Account"), to be
held on behalf of the Trustee in trust for the benefit of the
Certificateholders, for the retention of revenues and other proceeds derived
from each REO Property (other than any Sangertown Square REO Property or a XX
Xxxx REO Property). If such REO Acquisition occurs with respect to a XX Xxxx
Mortgaged Property, the Special Servicer shall establish an REO Account solely
with respect to the XX Xxxx REO Properties (the "XX Xxxx REO Account"), to be
held for the benefit of the Certificateholders and the affected XX Xxxx
Non-Trust Mortgage Loan Noteholders. The Pool REO Account and the XX Xxxx 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 Collection 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 each XX Xxxx
Non-Trust Mortgage Loan Noteholder of the location of any XX Xxxx REO Account,
in each case when first established and of the new location of any such REO
Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the related REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any Administered REO Property, but only to the extent of amounts
on deposit in such REO Account relating to such REO Property. On the Business
Day following each Determination Date, the Special Servicer shall withdraw from
each REO Account and deposit into the corresponding Custodial Account (or
deliver to the Master Servicer or such other Person as may be designated by the
Master Servicer for deposit into the corresponding Custodial Account) the
aggregate of all amounts received in respect of each Administered REO Property
during the Collection Period ending on such Determination Date, net of any
withdrawals made out of such amounts pursuant to the preceding sentence;
provided that 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
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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. For purposes of the foregoing, the
Pool REO Account and the XX Xxxx REO Account correspond to the Pool Custodial
Account and the XX Xxxx Custodial Account, respectively.
(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 Sangertown Square REO Property.
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition by it of title to a Mortgaged Property
(other than the Sangertown Square 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
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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 XX Xxxx REO Property, the affected
XX Xxxx Non-Trust Mortgage Loan Noteholders) by maximizing (to the extent
commercially reasonable and consistent with Section 3.17(b)) the net after-tax
REO Revenues received by the Trust Fund with respect to such property without
materially impairing the Special Servicer's ability to promptly sell such
property for a fair price. In connection with performing their respective duties
under this Section 3.17(a), both the Special Servicer and the Tax Administrator
may consult with counsel and tax accountants, the reasonable cost of which
consultation shall be covered by, and be reimbursable as, a Servicing Advance to
be made by the Special Servicer.
(b) If title to any Administered REO Property is acquired, the Special
Servicer shall manage, conserve, protect and operate such REO Property for the
benefit of the Certificateholders (and, in the case of any XX Xxxx REO Property,
the affected XX Xxxx Non-Trust Mortgage Loan Noteholders) 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
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regard to recoverability if it is a necessary fee or expense incurred in
connection with the defense or prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special
Servicer shall not, with respect to any Administered REO Property:
(i) enter into, renew or extend any New Lease with respect to
such Administered REO Property, if the New Lease, by its terms would give
rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on such Administered
REO Property, other than the completion of a building or other improvement
thereon, and then only if more than 10% of the construction of such
building or other improvement was completed before default on the related
Serviced Trust 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 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 XX Xxxx REO Property,
the XX Xxxx Non-Trust Mortgage Loan Noteholders) 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
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meaning of Section 1.856-4(b)(5) of the Treasury regulations or any
successor provision), remit all related revenues collected (net of its fees
and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to
any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of its
duties and obligations hereunder with respect to the operation and
management of such Administered REO Property; and
(v) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such
Administered REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations under Section 3.16 and this Section 3.17 for indemnification of
the Special Servicer by any such Independent Contractor, and nothing in this
Agreement shall be deemed to limit or modify such indemnification. No agreement
entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing
Agreement for purposes of Section 3.22.
(e) Notwithstanding anything to the contrary, this Section 3.17 shall
not apply to any Sangertown Square REO Property.
SECTION 3.18. Sale of Trust Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may sell
or purchase, or permit the sale or purchase of, a Trust Mortgage Loan or 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 XX Xxxx Trust Mortgage Loan, as set
forth in the XX Xxxx Co-Lender Agreement, and (iv) in the case of a Trust
Mortgage Loan with a related mezzanine loan, in connection with a Mortgage Loan
default as set forth in the related intercreditor agreement.
(b) Within five Business Days after any Serviced Trust Mortgage Loan
has become a Specially Serviced Trust Mortgage Loan, the Special Servicer shall
give notice of such event to the XX Xxxx Non-Trust Mortgage Loan Noteholders (if
such Trust Mortgage Loan is part of the XX Xxxx Loan Group), each holder of a
Certificate of the Controlling Class and the Trustee. The Special Servicer, any
single Holder or any group of Certificateholders evidencing a majority of the
Voting Rights allocated to the Controlling Class and any assignees of the
foregoing parties (collectively, the "Purchase Option Holders") shall each have
the option to purchase such Specially Serviced Trust Mortgage Loan at a cash
price that is at least equal to the related Purchase Price; provided that a
material default exists or is reasonably foreseeable with respect to such
Specially Serviced Trust Mortgage Loan; and provided, further, that any such
purchase by a Purchase Option Holder of a XX Xxxx Trust Mortgage Loan shall be
subject to the simultaneous purchase by such Purchase Option Holder of each XX
Xxxx Trust Mortgage Loan at a cash price at least equal to the related Purchase
Price. The Special Servicer shall accept the first offer by a Purchase Option
Holder that is at least equal to the Purchase Price.
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(c) If none of the Purchase Option Holders exercises its option to
purchase any Specially Serviced Trust Mortgage Loan as described in subsection
(b) above, then each Purchase Option Holder will also have the option to
purchase that Specially Serviced Trust Mortgage Loan at a price equal to the
fair value of such Specially Serviced Trust Mortgage Loan (the "FV Price");
provided that a material default exists or is reasonably foreseeable with
respect to such Specially Serviced Trust Mortgage Loan; and provided, further,
that any purchase by a Purchase Option Holder of a XX Xxxx Trust Mortgage Loan
at the related FV Price shall be subject to the simultaneous cash purchase by
such Purchase Option Holder of each XX Xxxx Trust Mortgage Loan at a cash price
at least equal to the related FV Price. Upon receipt of a request from any
Purchase Option Holder to determine the FV Price in contemplation of its
intention to exercise its option to purchase a Specially Serviced Trust Mortgage
Loan at a price that is below the related Purchase Price, the Special Servicer
shall promptly obtain an MAI appraisal of the related Mortgaged Property by an
Independent Appraiser (unless such an appraisal was obtained within one year of
such date and the Special Servicer has no knowledge of any circumstances that
would materially affect the validity of such appraisal). Promptly after
obtaining such appraisal, the Special Servicer shall determine the FV Price for
the subject Specially Serviced Trust Mortgage Loan in accordance with the
Servicing Standard and the provisions of subsection (i) below. Promptly after
determining the FV Price, the Special Servicer shall report such FV Price to the
Trustee and each Purchase Option Holder.
(d) In the event that the Special Servicer determines that it is
willing, or another Purchase Option Holder notifies the Special Servicer that it
is willing, to purchase any Specially Serviced Trust Mortgage Loan (the party
submitting such bid, the "Initial Bidder") at a price equal to or above the FV
Price (a "FV Bid"), the Special Servicer shall notify all other Purchase Option
Holders that it has made or received, as the case may be, such FV Bid (without
disclosing the amount of such FV Bid). All other Purchase Option Holders may
submit competing bids within the ten Business Day period following such notice.
At the conclusion of the above-described ten Business Day period, the Special
Servicer shall accept the highest bid received from any Purchase Option Holder
that is at least equal to the FV Price for the subject Specially Serviced Trust
Mortgage Loan.
(e) If the Special Servicer accepts the bid of any Purchase Option
Holder, such Purchase Option Holder shall be required to purchase the subject
Specially Serviced Trust Mortgage Loan within ten Business Days of receipt of
notice of such acceptance.
(f) If the Special Servicer has not accepted a FV Bid prior to the
expiration of 120 days from its determination of the FV Price and thereafter
receives a FV Bid or a request from a Purchase Option Holder for an updated FV
Price, the Special Servicer shall within 45 days recalculate the FV Price (with
no presumption that such FV Price should be reduced on account of the lack of an
FV Bid) and repeat the notice and bidding procedure provided in subsection (d)
above until the purchase option terminates under subsection (j) below.
(g) If the party exercising the purchase option at the FV Price for
any Specially Serviced Trust Mortgage Loan is the Special Servicer or an
Affiliate thereof, the Trustee shall verify that the FV Price is at least equal
to the fair value of such Trust Mortgage Loan. In determining whether the FV
Price of any Specially Serviced Trust Mortgage Loan is at least equal to the
fair value thereof, the Trustee will be permitted to conclusively rely on an
appraisal obtained by the Trustee from an Independent Appraiser at the time it
is required to verify such FV Price and/or the opinion of an Independent expert
in real estate matters (including the Master Servicer) with at least five years'
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experience in valuing or investing in loans, similar to the subject Specially
Serviced Trust Mortgage Loan, that has been selected by the Trustee with
reasonable care at the expense of the Trust Fund.
(h) Any Purchase Option Holder may, once such option is exercisable,
assign its purchase option with respect to any Specially Serviced Trust Mortgage
Loan to a third party other than another Purchase Option Holder; and, upon such
assignment, such third party shall have all of the rights that had been granted
to the Purchase Option Holder hereunder in respect of the purchase option. Such
assignment shall only be effective upon written notice (together with a copy of
the executed assignment and assumption agreement) being delivered to the
Trustee, the Master Servicer and the Special Servicer.
(i) In determining the FV Price for any Specially Serviced Trust
Mortgage Loan, the Special Servicer may take into account, among other factors,
the results of any appraisal or updated appraisal that it or the Master Servicer
may have obtained in accordance with this Agreement within the prior twelve
months; the opinions on fair value expressed by Independent investors in
mortgage loans comparable to the subject Specially Serviced Trust Mortgage Loan;
the period and amount of any delinquency on the subject Specially Serviced Trust
Mortgage Loan; the physical condition of the related Mortgaged Property; the
state of the local economy; and the expected recoveries from the subject
Specially Serviced Trust Mortgage Loan if the Special Servicer were to pursue a
workout or foreclosure strategy instead of selling such Trust Mortgage Loan to a
Purchase Option Holder.
(j) The purchase option for any Specially Serviced Trust Mortgage Loan
pursuant to this Section 3.18 shall terminate, and shall not be exercisable as
set forth in subsections (b) and (c) above (or if exercised, but the purchase of
the subject Specially Serviced Trust Mortgage Loan has not yet occurred, shall
terminate and be of no further force or effect) if and when (i) the Special
Servicer has accepted a FV Bid, (ii) such Specially Serviced Trust Mortgage Loan
has become a Corrected Trust Mortgage Loan, (iii) the related Mortgaged Property
has become an REO Property, (iv) a Final Recovery Determination has been made
with respect to such Specially Serviced Trust Mortgage Loan or (v) such
Specially Serviced Trust Mortgage Loan has been removed from the Trust Fund.
(k) Until such time as a FV Bid is accepted with respect to any
Specially Serviced Trust Mortgage Loan, the Special Servicer shall continue to
pursue all of the other resolution options available to it with respect to the
Specially Serviced Trust Mortgage Loan in accordance with this Agreement and the
Servicing Standard.
(l) Notwithstanding anything to the contrary herein, the XX Xxxx
Non-Trust Mortgage Loan Noteholders shall be entitled to purchase the XX Xxxx
Trust Mortgage Loans in accordance with the terms and conditions set forth in
the XX Xxxx Co-Lender Agreement, even after such Trust Mortgage Loans have been
purchased out of the Trust Fund pursuant to the purchase option provided for in
this Section 3.18. The Master Servicer or the Special Servicer, as applicable,
shall determine the price to be paid in accordance with the terms of the XX Xxxx
Co-Lender Agreement in connection with any such purchase and shall provide such
notices to the XX Xxxx Non-Trust Mortgage Loan Noteholders as are required by
the XX Xxxx Co-Lender Agreement in connection with such holders' purchase
rights.
(m) Any purchase of a Specially Serviced Trust Mortgage Loan that is
purchased pursuant to the purchase option provided for in this Section 3.18 will
remain subject to the cure and purchase rights, in each case if applicable, of
any holder of a related mezzanine loan in connection with a Mortgage Loan
default as set forth in the related intercreditor agreement.
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(n) The Special Servicer shall use its best efforts to solicit bids
for each Administered REO Property in such manner as will be reasonably likely
to realize a fair price within the time period provided for by Section 3.16(a).
Subject to Section 6.11 or 6.11A, 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 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
Sections 6.11 or 6.11A, as applicable) the Special Servicer shall dispose of
such REO Property upon such terms and conditions as the Special Servicer shall
deem necessary and desirable to maximize the recovery thereon under the
circumstances and, in connection therewith, shall accept the highest outstanding
cash bid, regardless of from whom received.
(o) The Special Servicer shall give the Trustee and the Depositor
prior written notice of its intention to sell any Administered REO Property
pursuant to this Section 3.18.
(p) No Interested Person shall be obligated to submit a bid to
purchase any Administered REO Property, and notwithstanding anything to the
contrary herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Administered REO Property pursuant
hereto.
(q) Whether any cash bid constitutes a fair price for any Administered
REO Property for purposes of this Section 3.18, shall be determined by the
Special Servicer or, if such cash bid is from the Special Servicer or an
Affiliate of the Special Servicer, by the Trustee. In determining whether any
bid received from the Special Servicer or an Affiliate of the Special Servicer
represents a fair price for any Administered REO Property, the Trustee shall be
supplied with and shall be entitled to rely on the most recent appraisal in the
related Servicing File conducted in accordance with this Agreement within the
preceding 12-month period (or, in the absence of any such appraisal or if there
has been a material change at the subject REO Property since any such appraisal,
on a new appraisal to be obtained by the Special Servicer (the cost of which
shall be covered by, and be reimbursable as, a Servicing Advance)). The
appraiser conducting any such new appraisal shall be an Independent Appraiser
selected by the Special Servicer if neither the Special Servicer nor any
Affiliate thereof is bidding with respect to an Administered REO Property and
selected by the Trustee if either the Special Servicer or any Affiliate thereof
is so bidding. Where any Interested Person is among those bidding with respect
to an Administered REO Property, the Special Servicer shall require that all
bids be submitted to it (and, if the Special Servicer or any Affiliate thereof
is bidding, to the Trustee) in writing and be accompanied by a refundable
deposit of cash in an amount equal to 5% of the bid amount. In determining
whether any bid from a Person other than itself or one of its Affiliates
constitutes a fair price for any Administered REO Property, the Special Servicer
shall take into account the results of any appraisal or updated appraisal that
it or the Master Servicer may have obtained in accordance with this Agreement
within the prior twelve months, and any Independent Appraiser shall be
instructed to take into account, as applicable, among other factors, the
occupancy level and physical condition of the subject REO Property, the state of
the local economy and the obligation to dispose of the subject REO Property
within the time period specified in Section 3.16(a). The Purchase Price for any
Administered REO Property shall in all cases be deemed a fair price.
Notwithstanding the other provisions of this Section 3.18, no cash bid from the
Special Servicer or any Affiliate thereof shall constitute a fair price for any
Administered REO Property unless such bid is the highest cash bid received and
at least two independent bids (not including the bid of the Special Servicer or
any Affiliate thereof) have been received. In the event the bid of the Special
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Servicer or any Affiliate thereof is the only bid received or is the higher of
only two bids received, then additional bids shall be solicited. If an
additional bid or bids, as the case may be, are received and the original bid of
the Special Servicer or any Affiliate thereof is the highest of all cash bids
received, then the bid of the Special Servicer or such Affiliate shall be
accepted, provided that the Trustee has otherwise determined, as provided above
in this Section 3.18(q), that such bid constitutes a fair price for any
Administered REO Property. Any bid by the Special Servicer shall be
unconditional; and, if accepted, the subject Administered REO Property shall be
transferred to the Special Servicer without recourse, representation or warranty
other than customary representations as to title given in connection with the
sale of a real property.
(r) Subject to Sections 3.18(a) through 3.18(q) above, and further
subject to Section 6.11 and/or Section 6.11A, in each case if and as applicable,
the Special Servicer shall act on behalf of the Trustee in negotiating with
independent third parties seeking to purchase an Administered REO Property and
taking any other action necessary or appropriate in connection with the sale of
any Specially Serviced Trust Mortgage Loan or Administered REO Property pursuant
to this Section 3.18, and the collection of all amounts payable in connection
therewith. In connection therewith, the Special Servicer may charge prospective
bidders for any Administered REO Property, and may retain, fees that approximate
the Special Servicer's actual costs in the preparation and delivery of
information pertaining to, or evaluating bids for, such Administered REO
Property without obligation to deposit such amounts into any Custodial Account.
Any sale of a Specially Serviced Trust Mortgage Loan or an Administered REO
Property pursuant to this Section 3.18 shall be final and without recourse to
the Trustee or the Trust, and if such sale is consummated in accordance with the
terms of this Agreement, neither the Special Servicer nor the Trustee shall have
any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(s) Any sale of a Specially Serviced Trust Mortgage Loan or an
Administered REO Property pursuant to this Section 3.18 shall be for cash only
and shall be on a servicing released basis.
SECTION 3.19. Additional Obligations of the Master Servicer;
Obligations to Notify Ground Lessors; 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 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 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 0.015% 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 Performing 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.
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(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) 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 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(c), the
Master Servicer shall not be required to make at the direction of the Special
Servicer, any Servicing Advance if the Master Servicer determines in its
reasonable, good faith judgment that such Servicing Advance, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
in fact a Nonrecoverable Servicing Advance. The Master Servicer shall notify the
Special Servicer in writing of such determination, which shall be made pursuant
to Section 3.11(h). Any request by the Special Servicer that the Master Servicer
make a Servicing Advance shall be deemed to be a determination by the Special
Servicer that such requested Servicing Advance is not a Nonrecoverable Servicing
Advance, and the Master Servicer, the Trustee and the Fiscal Agent shall be
entitled to conclusively rely on such determination. Upon determining that any
Servicing Advance previously made with respect to a Specially Serviced Mortgage
Loan or an Administered REO Property is a Nonrecoverable Servicing Advance, the
Special Servicer shall report to the Master Servicer the Special Servicer's
determination. The Master Servicer shall be entitled to conclusively rely on
such a determination.
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 and/or Section 6.11A, in each case if and as
applicable, and any related intercreditor, co-lender or similar agreement
(including, in the case of a Mortgage Loan in the XX Xxxx Loan Group, the XX
Xxxx 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 XX Xxxx Non-
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Trust Mortgage Loan, the related XX Xxxx 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
XX Xxxx 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 Sangertown Square Loan Pair.
(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)) affect the amount or
timing of any of the payment terms of such 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 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 (v) 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 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 the XX Xxxx Loan
Group;
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(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); and
(v) 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, (B) the related Serviced Trust
Mortgage Loan does not represent 2% or more of the then aggregate principal
balance of the Mortgage Pool and (C) a XX Xxxx Mortgaged Property is not
involved.
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 the Grantor Trust.
(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 XX Xxxx Non-Trust Mortgage Loan, the related XX
Xxxx Non-Trust Mortgage Loan Noteholder, shall not agree or consent to any
modification, extension, waiver or amendment of any term of any Serviced
Mortgage Loan that would:
(i) affect the amount or timing of any scheduled payment of
principal, interest or other amount (including Prepayment Premiums or Yield
Maintenance Charges, but excluding Default Interest and 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.
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(e) Notwithstanding Section 3.20(d), but subject to Section 6.11
and/or Section 6.11A, 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 the
XX Xxxx Loan Group is involved, would increase the recovery on the XX Xxxx Loan
Group to Certificateholders and the XX Xxxx Non-Trust Mortgage Loan Noteholders
(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 the XX Xxxx Loan Group, to Certificateholders and the XX
Xxxx Non-Trust Mortgage Loan Noteholders), to be performed at the related
Mortgage Rate(s)), and (C) such modification, extension, waiver or amendment
would not cause an Adverse REMIC Event in respect of any REMIC Pool or an
Adverse Grantor Trust Event with respect to the Grantor Trust; and provided,
further, that (X) any modification, extension, waiver or amendment of the
payment terms of the XX Xxxx Loan Group shall be structured so as to be
consistent with the allocation and payment priorities set forth in the related
loan documents and the XX Xxxx Co-Lender Agreement, such that neither the Trust
as holder of the XX Xxxx Trust Mortgage Loans nor any of the XX Xxxx 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 XX Xxxx
Co-Lender Agreement, reflected in the related loan documents and such co-lender
agreement, and (Y) to the extent consistent with the Servicing Standard (taking
into account the extent to which the XX Xxxx Non-Trust Mortgage Loans are junior
to the XX Xxxx Trust Mortgage Loans), (1) no waiver, reduction or deferral of
any particular amounts due on any of the cross-collateralized XX Xxxx Trust
Mortgage Loans shall be effected prior to the waiver, reduction or deferral of
the entire corresponding item in respect of the related cross-collateralized XX
Xxxx Non-Trust Mortgage Loans, (2) no reduction of the Mortgage Rate of any of
the cross-collateralized XX Xxxx Trust Mortgage Loans shall be effected prior to
the reduction of the Mortgage Rate of each of the related cross-collateralized
XX Xxxx Non-Trust Mortgage Loans, (3) no waiver, reduction or deferral of any
particular amounts due on an uncrossed or defeased XX Xxxx Trust Mortgage Loan
shall be effected prior to the waiver, reduction or deferral of the entire
corresponding item in respect of the related XX Xxxx Non-Trust Mortgage Loan,
and (4) no reduction of the Mortgage Rate of any uncrossed or defeased XX Xxxx
Trust Mortgage Loan shall be effected prior to the reduction of the Mortgage
Rate of the related XX Xxxx Non-Trust Mortgage Loan, in each such case 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
among the cross-collateralized XX Xxxx Trust Mortgage Loans, and as among the
cross-collateralized XX Xxxx Non-Trust Mortgage Loans, respectively, on a pro
rata and pari passu basis (in accordance with the XX Xxxx Co-Lender Agreement).
In no event shall the Special 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)
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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 the XX Xxxx Loan Group, the XX Xxxx
Non-Trust Mortgage Loan Noteholders) and describing in reasonable detail the
basis for the Special Servicer's determination. The Special Servicer shall
attach to such Officer's Certificate any information including but not limited
to income and expense statements, rent rolls, property inspection reports and
appraisals that support such determination.
(f) Notwithstanding anything to the contrary in this Agreement, none
of the Trustee, the Master Servicer or the Special Servicer, as applicable,
shall give any consent, approval or direction regarding the termination of the
related property manager or the designation of any replacement property manager
or, if such Mortgaged Property is hospitality property, give any consent,
approval or direction regarding the termination of the franchise or the
designation of a new franchise, with respect to any Mortgaged Property that
secures a Serviced Trust Mortgage Loan that has an unpaid principal balance that
is at least equal to the lesser of $20,000,000 and 2% of the then aggregate
principal balance of the Mortgage Pool, unless: (1) the mortgagee is not given
discretion under the terms of the related Mortgage Loan to withhold its consent;
or (2) it has received prior written confirmation from each Rating Agency that
such action will not result in an Adverse Rating Event.
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.
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(i) The Special Servicer and Master Servicer shall each notify the
other, any related Sub-Servicers, the Trustee and, if a XX Xxxx Non-Trust
Mortgage Loan is affected, the XX Xxxx Non-Trust Mortgage Loan Noteholders, 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 XX Xxxx Non-Trust
Mortgage Loan is affected, the related XX Xxxx Non-Trust Mortgage Loan
Noteholder), an executed counterpart of the agreement relating to such
modification, extension, waiver or amendment promptly following execution and
delivery thereof, to be followed by an original recorded counterpart promptly
following the recordation (and receipt) thereof.
(j) To the extent that either the Master Servicer or Special Servicer
waives any Default Charge in respect of any Serviced Mortgage Loan, whether
pursuant to Section 3.02(a) or this Section 3.20, the respective amounts of
additional servicing compensation payable to the Master Servicer and the Special
Servicer as Net Default Charges out of such Default Charges shall be reduced
proportionately based upon the respective amounts that would have been payable
thereto as Net Default Charges out of such Default Charges if such waiver had
not been granted.
(k) If, with respect to any Serviced Mortgage Loan (1) under which the
lender can require defeasance in lieu of prepayment, or (2) that permits
defeasance, the Master Servicer shall receive a notice from the related
Mortgagor that it intends to prepay or defease, as applicable, such Serviced
Mortgage Loan in accordance with the terms thereof, then the Master Servicer
shall, subject to the next paragraph and the related loan documents, (i) only in
the case of a Serviced Mortgage Loan under clause (1) above, promptly respond to
such notice in a manner which would require that the Mortgagor pledge Defeasance
Collateral in lieu of such prepayment pursuant to the terms of the related
Mortgage Note, and (ii) notify each Rating Agency, the Trustee, the Underwriters
and the Special Servicer of the intent to defease such Mortgage Loan, and (iii)
upon the written confirmation from each Rating Agency that the acceptance of a
pledge of the Defeasance Collateral (or, in the case of a Serviced Mortgage Loan
under clause (1) above, that the acceptance of a pledge of the Defeasance
Collateral in lieu of a full prepayment) will not result in an Adverse Rating
Event, 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 XX Xxxx Non-Trust Mortgage Loan, the
related XX Xxxx Non-Trust Mortgage Loan Noteholder); 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
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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 (excluding of the Sangertown Square
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.
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.
(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 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
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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 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 Business Days of such occurrence return the related Servicing File,
together with any and all new information, documents and records relating to the
subject Mortgage Loan that were not part of the Servicing File when it was
delivered to the Special 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
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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
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) 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) and (xi), 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 the XX Xxxx Loan Group, the XX Xxxx
Non-Trust Mortgage Loan
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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 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 XX Xxxx
Non-Trust Mortgage Loan Noteholder, a copy of any Sub-Servicing Agreement in
respect of a XX Xxxx Non-Trust Mortgage Loan), as well as any amendments thereto
and modifications thereof, entered into by it promptly upon its execution and
delivery of such documents. References in this Agreement to actions taken or to
be taken by the Master Servicer or the Special Servicer include actions taken or
to be taken by a Sub-Servicer on behalf of the Master Servicer or the Special
Servicer, as the case may be; and, in connection therewith, all amounts advanced
by any Sub-Servicer to satisfy the obligations of the Master Servicer or the
Special Servicer hereunder to make P&I Advances or Servicing Advances shall be
deemed to have been advanced by the Master Servicer or the Special Servicer, as
the case may be, out of its own funds and, accordingly, such P&I Advances or
Servicing Advances shall be recoverable by such Sub-Servicer in the same manner
and out of the same funds as if such Sub-Servicer were the Master Servicer or
the Special Servicer, as the case may be. For so long as they are outstanding,
Advances shall accrue interest in accordance with Sections 3.11(g) or 4.03(d),
as applicable, such interest to be allocable between the Master Servicer or the
Special Servicer, as the case may be, and such Sub-Servicer as they may agree.
For purposes of this Agreement, the Master Servicer and the Special Servicer
each shall be deemed to have received any payment when a Sub-Servicer retained
by it receives such payment. The Master Servicer and the Special Servicer each
shall notify the other, the Trustee, the Depositor, the Controlling Class
Certificateholders and, if the XX Xxxx Loan Group is affected, the XX Xxxx
Non-Trust Mortgage Loan Noteholders 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 the XX Xxxx Loan Group,
also for the benefit of the XX Xxxx Non-Trust Mortgage Loan Noteholders, shall
(at no expense to the Trustee, the Certificateholders, any affected XX Xxxx
Non-Trust Mortgage Loan Noteholder or the Trust Fund) monitor the performance
and
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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 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 XX Xxxx Non-Trust Mortgage Loan Noteholders 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.
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 XX Xxxx Non-Trust Mortgage Loan Noteholders, as of
the Closing Date, that:
(i) The Master Servicer is a national banking association, duly
organized under the laws of the United States, and the Master Servicer is
in compliance with the laws of
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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 violate the Master Servicer'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 material
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, receivership, insolvency, reorganization, moratorium
and other laws affecting the enforcement of creditors' (including bank
creditors') rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Master Servicer's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the Master
Servicer to perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer, the outcome
of which, in the Master Servicer's good faith and reasonable judgment,
could reasonably be expected to prohibit the Master Servicer from entering
into this Agreement or materially and adversely affect the ability of the
Master Servicer to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court
or governmental agency or body required under federal or state law for the
execution, delivery and performance by the Master Servicer of or compliance
by the Master Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement has been obtained and is
effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Master Servicer under this Agreement.
(viii) The Master Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
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(ix) The Master Servicer has reviewed all Sub-Servicing
Agreements in effect as of the Closing Date and will review all
Sub-Servicing Agreements entered into by it after the Closing Date.
(b) The representations and warranties of the Master Servicer set
forth in Section 3.23(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Master Servicer shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 3.23(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.23(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 3.24. Representations and Warranties of the Special Servicer.
(a) The Special Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders and the XX Xxxx Non-Trust Mortgage Loan Noteholders, as of
the Closing Date, that:
(i) The Special Servicer is a corporation validly existing and in
good standing under the laws of the State of Florida, and the Special
Servicer is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special Servicer'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 material
instrument to which it is a party or which is applicable to it or any of
its assets.
(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
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constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Special
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Special Servicer to
perform its obligations under this Agreement or the financial condition of
the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer, the outcome
of which, in the Special Servicer's good faith and reasonable judgment,
could reasonably be expected to prohibit the Special Servicer from entering
into this Agreement or materially and adversely affect the ability of the
Special Servicer to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court
or governmental agency or body required under federal or state law for the
execution, delivery and performance by the Special Servicer of or
compliance by the Special Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and is
effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Special Servicer under this Agreement.
(viii) The Special Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(b) The representations and warranties of the Special Servicer set
forth in Section 3.24(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 3.24(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.24(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 3.25. Certain Matters Regarding the Purchase of the XX Xxxx
Trust Mortgage Loan and the Sangertown Square Trust
Mortgage Loan.
If, pursuant to or as contemplated by Section 2.03, Section 3.18 or
Section 9.01, a XX Xxxx Trust Mortgage Loan is purchased or repurchased from the
Trust Fund, the purchaser thereof shall be bound by the terms of the XX Xxxx
Co-Lender Agreement and shall assume the rights and obligations of the holder of
such Trust Mortgage Loan under the XX Xxxx 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 appropriate party or parties under the XX Xxxx Co-Lender Agreement.
Thereafter such Mortgage File shall be held as provided in the XX Xxxx 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 XX Xxxx Loan Group, under, or
otherwise in accordance with, any applicable separate servicing agreement
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for the XX Xxxx Loan Group or as otherwise contemplated by the XX Xxxx Co-Lender
Agreement. If, pursuant to or as contemplated by Section 2.03 or Section 9.01,
the Sangertown Square Trust Mortgage Loan is purchased or repurchased from the
Trust Fund, the purchaser thereof shall be bound by the terms of the Sangertown
Square Co-Lender and Servicing Agreement and shall assume the rights and
obligations of the "Note B Lender" under the Sangertown Square Co-Lender and
Servicing Agreement. The original Mortgage Note for the Sangertown Square 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 B Lender" (as a result of such purchase or repurchase) under the
Sangertown Square Co-Lender and Servicing Agreement in the manner contemplated
under such agreement, which such purchaser shall be deemed to acknowledge.
SECTION 3.26. Application of Default Charges.
(a) Any and all Default Charges Received by the Trust with respect to
any Serviced Trust Mortgage Loan or any successor REO Trust Mortgage Loan with
respect thereto 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 the Fiscal Agent, the Trustee, the Master
Servicer or the Special Servicer, in that order, any interest due and owing
to such party on any outstanding Advances made thereby with respect to any
Trust Mortgage Loan or REO Trust Mortgage Loan and reimbursed during such
Collection Period;
second, to pay any other outstanding expense (exclusive of
Special Servicing Fees, Liquidation Fees and Workout Fees) incurred with
respect to any Trust Mortgage Loan or REO Trust Mortgage Loan and that, if
paid from a source other than such Default Charges, would constitute an
Additional Trust Fund Expense;
third, to reimburse the Trust for any interest on Advances paid
to the Fiscal Agent, the Trustee, the Master Servicer or the Special
Servicer in the preceding twelve months with respect to any Trust Mortgage
Loan or REO Trust Mortgage Loan, which interest payment was made from
collections on the Mortgage Pool other than Default Charges 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 during the preceding twelve months with respect to any
Trust Mortgage Loan or REO Trust Mortgage Loan, which payment was made from
collections on the Mortgage Pool other than Default Charges 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 Trust Mortgage Loan, or as additional
special servicing compensation to the Special Servicer, to the 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;
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provided that any and all Default Charges that are actually collected with
respect to any XX Xxxx Trust Mortgage Loan or any successor REO Trust Mortgage
Loan with respect thereto shall first be applied pursuant to Section 3.26(d);
and provided, further, that the total interest on Advances payable pursuant to
clause first above shall take into account the allocations of Default Charges
made pursuant to Sections 3.26(c) and 3.26(d); and provided, further, that it is
hereby acknowledged that no Default Charges shall be Received by the Trust with
respect to the Sangertown Square Trust Mortgage Loan or any Sangertown Square
REO Trust Mortgage Loan.
(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 Master Servicer Remittance Date next
following the 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 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, 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 the chronological order in which they were made
or 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).
(c) Any and all Default Charges that are actually collected with
respect to any XX Xxxx Non-Trust Mortgage Loans or any successor REO Mortgage
Loan with respect thereto during any Collection Period (as allocable thereto
pursuant to the related loan documents and the XX Xxxx 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 Default Charges:
first, to pay to the Fiscal Agent, the Trustee, the Master
Servicer and the Special Servicer, in that order, any and all interest on
Servicing Advances made thereby with respect to the XX Xxxx Loan Group or
any XX Xxxx REO Property, which interest accrued on or prior to the date on
which the subject Default Charges were received (such Default Charges to be
applied with respect to any such particular party in such manner that the
earliest accrued interest shall be paid first); and
second, to pay the 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 any XX Xxxx Trust Mortgage Loans or any XX Xxxx
REO Trust Mortgage Loan, which interest accrued on or prior to the date on
which the subject Default Charges were received (such Default Charges to be
applied with respect to any such particular party in such manner that the
earliest accrued interest shall be paid first); and
third, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") as additional master servicing
compensation to the Master
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Servicer, to the extent received, if they were accrued with respect to such
XX Xxxx Non-Trust Mortgage Loan during a period that it was a Performing
Serviced Mortgage Loan, or as additional special servicing compensation to
the Special Servicer, to the extent received, if they were accrued with
respect to such XX Xxxx Non-Trust Mortgage Loan during a period that it was
a Specially Serviced Mortgage Loan or an REO Mortgage Loan, in each case
pursuant to Section 3.11;
provided that the order of application of Default Charges received on the
respective XX Xxxx Non-Trust Mortgage Loans or any REO Mortgage Loans with
respect thereto shall be governed by the XX Xxxx Co-Lender Agreement.
(d) Any and all Default Charges that are actually collected with
respect to any XX Xxxx Trust Mortgage Loan or any successor REO Trust Mortgage
Loan with respect thereto during any Collection Period (as allocable thereto
pursuant to the related loan documents and the XX Xxxx 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 Default Charges:
first, to pay to the Fiscal Agent, the Trustee, the Master
Servicer and the Special Servicer, in that order, any and all interest on
Servicing Advances made thereby with respect to the XX Xxxx Loan Group
and/or any related REO Property, which interest accrued on or prior to the
date on which the subject Default Charges were received and which interest
is not otherwise payable, pursuant to Section 3.26(c), out of Default
Charges collected with respect to the XX Xxxx Non-Trust Mortgage Loans or
any successor REO Mortgage Loans with respect thereto (such Default Charges
to be applied with respect to any such particular party in such manner that
the earliest accrued interest shall be paid first);
second, to pay the 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 XX Xxxx Trust Mortgage Loan or any
successor REO Trust Mortgage Loan with respect thereto, which interest
accrued on or prior to the date on which the subject Default Charges were
received and which interest is not otherwise payable, pursuant to Section
3.26(c), out of Default Charges collected with respect to the XX Xxxx
Non-Trust Mortgage Loans or any successor REO Mortgage Loans with respect
thereto (such Default Charges to be applied with respect to any such
particular party in such manner that the earliest accrued interest shall be
paid first); and
third, to make the payments contemplated by Section 3.26(a).
SECTION 3.27. Sangertown Square Purchase Option.
If, pursuant to the Sangertown Square Servicing Agreement, the
Sangertown Square Master Servicer has notified the Master Servicer or the
Trustee that the Sangertown Square Loan Pair are being specially serviced
pursuant to such agreement and that any Monthly Payment is 60 or more days
delinquent, then the Master Servicer (if it has received such notice) shall
promptly so notify in writing the Trustee, and the Trustee shall in all cases
promptly so notify in writing the Controlling Class of Certificateholders. For
so long as the Sangertown Square Loan Pair remain specially serviced and any
Monthly Payment is 60 days or more delinquent as contemplated above, any single
Certificateholder or group of Certificateholders of the Controlling Class
entitled to a majority of the Voting Rights allocated to the Controlling Class
may indicate to the Trustee in writing its or their intent to purchase the
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Sangertown Square Non-Trust Mortgage Loan in accordance with Section 4.03 of the
Sangertown Square Co-Lender and Servicing Agreement (only in its or their own
behalf and not on behalf of the Trust), whereupon the Trustee shall designate
such Certificateholder or group of Certificateholders as its designee to so
purchase the Sangertown Square Non-Trust Mortgage Loan (only in its or their own
behalf and not on behalf of the Trust), in accordance with such Section 4.03 of
the Sangertown Square Co-Lender and Servicing Agreement. Any such purchase will
be subject to all applicable provisions of, and at the price set forth in, the
Sangertown Square Co-Lender and Servicing Agreement. Upon any such purchase,
such Certificateholder or group of Certificateholders shall constitute the "Note
A Lender" under, and the Sangertown Square Loan Pair shall again be serviced and
administered in accordance with, the Sangertown Square Co-Lender and Servicing
Agreement. The Trustee shall reasonably cooperate with such Certificateholder or
Certificateholders in effecting such purchase.
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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 to make the
following distributions in respect of the Senior Certificates, in the following
order of priority, in each case to the extent of remaining available funds:
first, distributions of interest to the Holders of the respective
Classes of the Senior Certificates, up to an amount equal to, and pro rata as
among such Classes 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, 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-Over Date, but prior to the Final
Distribution Date, the Trustee shall make distributions of
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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; and
third, distributions to the Holders of the respective Classes of the
Class A Certificates, up to an amount equal to, pro rata as among such Classes
of Certificateholders in accordance with, and in reimbursement of, the Loss
Reimbursement Amount with respect to each such Class of Certificates for such
Distribution Date.
All distributions of interest made in respect of a Class of Interest
Only Certificates on any Distribution Date as provided above 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,
the Trustee shall, based on information provided by the Master Servicer and, if
applicable, the Special Servicer, withdraw from the Collection Account and 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 make distributions to the Holders of the Class B
Certificates, up to an amount equal to, and in reimbursement of, 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;
(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
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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 make distributions to the Holders of the Class C
Certificates, up to an amount equal to, and in reimbursement of, 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 make distributions to the Holders of the Class D
Certificates, up to an amount equal to, and in reimbursement of, 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 make distributions to the Holders of the Class E
Certificates, up to an amount equal to, and in reimbursement of, 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 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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(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 make distributions to the Holders of the Class F
Certificates, up to an amount equal to, and in reimbursement of, 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 make distributions to the Holders of the Class G
Certificates, up to an amount equal to, and in reimbursement of, 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 make distributions to the Holders of the Class H
Certificates, up to an amount equal to, and in reimbursement of, the Loss
Reimbursement Amount with respect to such Class of Certificates for such
Distribution Date;
(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
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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;
(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 make distributions to the Holders of the Class J
Certificates, up to an amount equal to, and in reimbursement of, 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 make distributions to the Holders of the Class K
Certificates, up to an amount equal to, and in reimbursement of, 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));
(xxx) to make distributions to the Holders of the Class L
Certificates, up to an amount equal to, and in reimbursement of, the Loss
Reimbursement Amount with respect to such Class of Certificates for such
Distribution Date;
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(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 make distributions to the Holders of the Class M
Certificates, up to an amount equal to, and in reimbursement of, 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 make distributions to the Holders of the Class N
Certificates, up to an amount equal to, and in reimbursement of, 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 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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(xxxix) to make distributions to the Holders of the Class P
Certificates, up to an amount equal to, and in reimbursement of, 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 make distributions to the Holders of the Class Q
Certificates, up to an amount equal to, and in reimbursement of, 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 make distributions to the Holders of the Class S
Certificates, up to an amount equal to, and in reimbursement of, 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 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));
(xlviii) to make distributions to the Holders of the Class T
Certificates, up to an amount equal to, and in reimbursement of, 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);
(li) to make distributions to the Holders of the Class R-LR
Certificates, up to an amount equal to the excess, if any, of (A) that
portion of the Available Distribution Amount for such Distribution Date
that is allocable to the Sangertown Square Trust Mortgage Loan and/or any
Sangertown Square REO Trust Mortgage Loan, over (B) the aggregate
distributions (other than distributions of Net Prepayment Consideration)
deemed made in respect of the Loan REMIC Regular Interests on such
Distribution Date pursuant to Section 4.01(l); and
(lii) 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, Class
R-II and Class R-LR Certificates on such Distribution Date pursuant to
clauses (i) through (li) 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
amount 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
such Class, on a pro rata basis in accordance with the respective
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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).
(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 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 Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate
pursuant to Section 4.04(a)) 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
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Master Servicer shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law. The Trustee and the Depositor
shall perform their respective obligations under each Letter of Representations
among the Depositor, the Trustee and the initial Depository dated as of the
Closing Date and pertaining to the Book-Entry Certificates.
(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 Realized Loss or Additional Trust Fund Expense previously
allocated 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
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of Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
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 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, any
of the remaining paragraphs 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 in reimbursement of
any Loss Reimbursement Amount with respect to such REMIC II Regular Interest.
The Class A-1 and Class A-3 Certificates shall, in the case of each
such Class of Certificates, have three Corresponding REMIC II Regular Interests.
The Class A-2, Class A-4, Class D and Class G Certificates shall, in the case of
each such Class of Certificates, have two Corresponding REMIC II Regular
Interests. Each other Class of Principal Balance Certificates shall have one
Corresponding REMIC II Regular Interest.
Deemed distributions of accrued interest made on REMIC II Regular
Interest A-1-1, REMIC II Regular Interest A-1-2 and REMIC II Regular Interest
A-1-3 shall be allocated among those three REMIC II Regular Interests on a pro
rata basis in accordance with the respective amounts of Uncertificated
Distributable Interest in respect of such REMIC II Regular Interests for the
subject Distribution Date and, to the extent not previously deemed paid, for all
prior Distribution Dates, if any. Deemed distributions of principal made on
REMIC II Regular Interest A-1-1, REMIC II Regular Interest A-1-2 and REMIC II
Regular Interest A-1-3 shall be allocated: first, to REMIC II Regular Interest
A-1-1, until its Uncertificated Principal Balance is reduced to zero; then, to
REMIC II Regular Interest A-1-2, until its Uncertificated Principal Balance is
reduced to zero; and last, to REMIC II Regular Interest A-1-3, until its
Uncertificated Principal Balance is reduced to zero. Deemed distributions of
additional interest (in the form of Net Prepayment Consideration) made on REMIC
II Regular Interest A-1-1, REMIC II Regular Interest A-1-2 and REMIC II Regular
Interest A-1-3 shall be allocated among those three REMIC II Regular Interests
on a pro rata basis in accordance with the respective amounts of principal
deemed distributed in respect of such REMIC II Regular Interests on the subject
Distribution Date. Deemed distributions in reimbursement of Loss Reimbursement
Amounts with respect to REMIC II Regular Interest A-1-1, REMIC II Regular
Interest A-1-2 and REMIC II Regular Interest A-1-3 shall be allocated among
those three REMIC II Regular Interests on a pro rata basis in accordance with
the respective amounts deemed reimbursable with respect thereto for the subject
Distribution Date.
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Deemed distributions of accrued interest made on REMIC II Regular
Interest A-2-1 and REMIC II Regular Interest A-2-2 shall be allocated between
those two REMIC II Regular Interests on a pro rata basis in accordance with the
respective amounts of Uncertificated Distributable Interest in respect of such
REMIC II Regular Interests for the subject Distribution Date and, to the extent
not previously deemed paid, for all prior Distribution Dates, if any. Deemed
distributions of principal made on REMIC II Regular Interest A-2-1 and REMIC II
Regular Interest A-2-2 shall be allocated: first, to REMIC II Regular Interest
A-2-1, until its Uncertificated Principal Balance is reduced to zero; and then,
to REMIC II Regular Interest A-2-2, until its Uncertificated Principal Balance
is reduced to zero. Deemed distributions of additional interest (in the form of
Net Prepayment Consideration) made on REMIC II Regular Interest A-2-1 and REMIC
II Regular Interest A-2-2 shall be allocated between those two REMIC II Regular
Interests on a pro rata basis in accordance with the respective amounts of
principal deemed distributed in respect of such REMIC II Regular Interests on
the subject Distribution Date. Deemed distributions in reimbursement of Loss
Reimbursement Amounts with respect to REMIC II Regular Interest A-2-1 and REMIC
II Regular Interest A-2-2 shall be allocated between those two REMIC II Regular
Interests on a pro rata basis in accordance with the respective amounts deemed
reimbursable with respect thereto for the subject Distribution Date.
Deemed distributions of accrued interest made on REMIC II Regular
Interest A-3-1, REMIC II Regular Interest A-3-2 and REMIC II Regular Interest
A-3-3 shall be allocated among those three REMIC II Regular Interests on a pro
rata basis in accordance with the respective amounts of Uncertificated
Distributable Interest in respect of such REMIC II Regular Interests for the
subject Distribution Date and, to the extent not previously deemed paid, for all
prior Distribution Dates, if any. Deemed distributions of principal made on
REMIC II Regular Interest A-3-1, REMIC II Regular Interest A-3-2 and REMIC II
Regular Interest A-3-3 shall be allocated: first, to REMIC II Regular Interest
A-3-1, until its Uncertificated Principal Balance is reduced to zero; then, to
REMIC II Regular Interest A-3-2, until its Uncertificated Principal Balance is
reduced to zero; and last, to REMIC II Regular Interest A-3-3, until its
Uncertificated Principal Balance is reduced to zero. Deemed distributions of
additional interest (in the form of Net Prepayment Consideration) made on REMIC
II Regular Interest A-3-1, REMIC II Regular Interest A-3-2 and REMIC II Regular
Interest A-3-3 shall be allocated among those three REMIC II Regular Interests
on a pro rata basis in accordance with the respective amounts of principal
deemed distributed in respect of such REMIC II Regular Interests on the subject
Distribution Date. Deemed distributions in reimbursement of Loss Reimbursement
Amounts with respect to REMIC II Regular Interest A-3-1, REMIC II Regular
Interest A-3-2 and REMIC II Regular Interest A-3-3 shall be allocated among
those three REMIC II Regular Interests on a pro rata basis in accordance with
the respective amounts deemed reimbursable with respect thereto for the subject
Distribution Date.
Deemed distributions of accrued interest made on REMIC II Regular
Interest A-4-1 and REMIC II Regular Interest A-4-2 shall be allocated between
those two REMIC II Regular Interests on a pro rata basis in accordance with the
respective amounts of Uncertificated Distributable Interest in respect of such
REMIC II Regular Interests for the subject Distribution Date and, to the extent
not previously deemed paid, for all prior Distribution Dates, if any. Deemed
distributions of principal made on REMIC II Regular Interest A-4-1 and REMIC II
Regular Interest A-4-2 shall be allocated: first, to REMIC II Regular Interest
A-4-1, until its Uncertificated Principal Balance is reduced to zero; and then,
to REMIC II Regular Interest A-4-2, until its Uncertificated Principal Balance
is reduced to zero. Deemed distributions of additional interest (in the form of
Net Prepayment Consideration) made on REMIC II Regular Interest A-4-1 and REMIC
II Regular Interest A-4-2 shall be allocated between those
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two REMIC II Regular Interests on a pro rata basis in accordance with the
respective amounts of principal deemed distributed in respect of such REMIC II
Regular Interests on the subject Distribution Date. Deemed distributions in
reimbursement of Loss Reimbursement Amounts with respect to REMIC II Regular
Interest A-4-1 and REMIC II Regular Interest A-4-2 shall be allocated between
those two REMIC II Regular Interests on a pro rata basis in accordance with the
respective amounts deemed reimbursable with respect thereto for the subject
Distribution Date.
Deemed distributions of accrued interest made on REMIC II Regular
Interest D-1 and REMIC II Regular Interest D-2 shall be allocated between those
two REMIC II Regular Interests on a pro rata basis in accordance with the
respective amounts of Uncertificated Distributable Interest in respect of such
REMIC II Regular Interests for the subject Distribution Date and, to the extent
not previously deemed paid, for all prior Distribution Dates, if any. Deemed
distributions of principal made on REMIC II Regular Interest D-1 and REMIC II
Regular Interest D-2 shall be allocated: first, to REMIC II Regular Interest
D-1, until its Uncertificated Principal Balance is reduced to zero; and then, to
REMIC II Regular Interest D-2, until its Uncertificated Principal Balance is
reduced to zero. Deemed distributions of additional interest (in the form of Net
Prepayment Consideration) made on REMIC II Regular Interest D-1 and REMIC II
Regular Interest D-2 shall be allocated between those two REMIC II Regular
Interests on a pro rata basis in accordance with the respective amounts of
principal deemed distributed in respect of such REMIC II Regular Interests on
the subject Distribution Date. Deemed distributions in reimbursement of Loss
Reimbursement Amounts with respect to REMIC II Regular Interest D-1 and REMIC II
Regular Interest D-2 shall be allocated between those two REMIC II Regular
Interests on a pro rata basis in accordance with the respective amounts deemed
reimbursable with respect thereto for the subject Distribution Date.
Deemed distributions of accrued interest made on REMIC II Regular
Interest G-1 and REMIC II Regular Interest G-2 shall be allocated between those
two REMIC II Regular Interests on a pro rata basis in accordance with the
respective amounts of Uncertificated Distributable Interest in respect of such
REMIC II Regular Interests for the subject Distribution Date and, to the extent
not previously deemed paid, for all prior Distribution Dates, if any. Deemed
distributions of principal made on REMIC II Regular Interest G-1 and REMIC II
Regular Interest G-2 shall be allocated: first, to REMIC II Regular Interest
G-1, until its Uncertificated Principal Balance is reduced to zero; and then, to
REMIC II Regular Interest G-2, until its Uncertificated Principal Balance is
reduced to zero. Deemed distributions of additional interest (in the form of Net
Prepayment Consideration) made on REMIC II Regular Interest G-1 and REMIC II
Regular Interest G-2 shall be allocated between those two REMIC II Regular
Interests on a pro rata basis in accordance with the respective amounts of
principal deemed distributed in respect of such REMIC II Regular Interests on
the subject Distribution Date. Deemed distributions in reimbursement of Loss
Reimbursement Amounts with respect to REMIC II Regular Interest G-1 and REMIC II
Regular Interest G-2 shall be allocated between those two REMIC II Regular
Interests on a pro rata basis in accordance with the respective amounts deemed
reimbursable with respect thereto for the subject 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
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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 with respect to all the REMIC I
Regular Interests, up to an amount equal to, pro rata in accordance with,
and in reimbursement of, any Loss Reimbursement Amount with respect to each
REMIC I Regular Interest (with compounded interest on the aggregate
unreimbursed amount of Unfunded Principal Balance Reductions in respect of
such REMIC I Regular Interest from time to time at the related REMIC I
Remittance Rate in effect from time to time).
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(s) corresponding to the prepaid Trust Mortgage Loan or REO Trust
Mortgage Loan, as the case may be, in respect of which such Net Prepayment
Consideration was received.
The actual distributions made by the Trustee on each Distribution Date
in respect of the REMIC III Certificates and the Class R-II Certificates
pursuant to Section 4.01(a), Section 4.01(b), Section 4.01(c) or Section 9.01,
as applicable, 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.
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(l) On each Distribution Date, including the Final Distribution Date,
the portion of the Available Distribution Amount for such Distribution Date that
is attributable to the Sangertown Square Trust Mortgage Loan or any Sangertown
Square REO Trust Mortgage Loan shall be deemed to have first been distributed
from the Sangertown Square Loan REMIC to REMIC I 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 Loan
REMIC Regular Interest SS-1, up to an amount equal to the Uncertificated
Distributable Interest with respect to such Loan REMIC Regular Interest for
such Distribution Date and, to the extent not previously deemed
distributed, for all prior Distribution Dates;
(ii) as deemed distributions of principal with respect to Loan
REMIC Regular Interest SS-1, up to an amount (not to exceed the
Uncertificated Principal Balance of such Loan REMIC Regular Interest
outstanding immediately prior to such Distribution Date) equal to the
entire portion of the Principal Distribution Amount for such Distribution
Date attributable to payments and other collections of principal in respect
of the corresponding Sangertown Square Loan Component;
(iii) as deemed distributions with respect to Loan REMIC Regular
Interest SS-1, up to an amount equal to, and in reimbursement of, any Loss
Reimbursement Amount with respect to such Loan REMIC Regular Interest for
such Distribution Date;
(iv) as deemed distributions of interest with respect to Loan
REMIC Regular Interest SS-2, up to an amount equal to the Uncertificated
Distributable Interest with respect to such Loan REMIC Regular Interest for
such Distribution Date and, to the extent not previously deemed
distributed, for all prior Distribution Dates;
(v) as deemed distributions of principal with respect to Loan
REMIC Regular Interest SS-2, up to an amount (not to exceed the
Uncertificated Principal Balance of such Loan REMIC Regular Interest
outstanding immediately prior to such Distribution Date) equal to the
entire portion of the Principal Distribution Amount for such Distribution
Date attributable to payments and other collections of principal in respect
of the corresponding Sangertown Square Loan Component;
(vi) as deemed distributions with respect to Loan REMIC Regular
Interest SS-2, up to an amount equal to, and in reimbursement of, any Loss
Reimbursement Amount with respect to such Loan REMIC Regular Interest for
such Distribution Date;
(vii) as deemed distributions of interest with respect to Loan
REMIC Regular Interest SS-3, up to an amount equal to the Uncertificated
Distributable Interest with respect to such Loan REMIC Regular Interest for
such Distribution Date and, to the extent not previously deemed
distributed, for all prior Distribution Dates;
(viii) as deemed distributions of principal with respect to Loan
REMIC Regular Interest SS-3, up to an amount (not to exceed the
Uncertificated Principal Balance of such Loan REMIC Regular Interest
outstanding immediately prior to such Distribution Date) equal to the
entire portion of the Principal Distribution Amount for such Distribution
Date
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attributable to payments and other collections of principal in respect of
the corresponding Sangertown Square Loan Component;
(ix) as deemed distributions with respect to Loan REMIC Regular
Interest SS-3, up to an amount equal to, and in reimbursement of, any Loss
Reimbursement Amount with respect to such Loan REMIC Regular Interest for
such Distribution Date;
(x) as deemed distributions of interest with respect to Loan
REMIC Regular Interest SS-4, up to an amount equal to the Uncertificated
Distributable Interest with respect to such Loan REMIC Regular Interest for
such Distribution Date and, to the extent not previously deemed
distributed, for all prior Distribution Dates;
(xi) as deemed distributions of principal with respect to Loan
REMIC Regular Interest SS-4, up to an amount (not to exceed the
Uncertificated Principal Balance of such Loan REMIC Regular Interest
outstanding immediately prior to such Distribution Date) equal to the
entire portion of the Principal Distribution Amount for such Distribution
Date attributable to payments and other collections of principal in respect
of the corresponding Sangertown Square Loan Component;
(xii) as deemed distributions with respect to Loan REMIC Regular
Interest SS-4, up to an amount equal to, and in reimbursement of, any Loss
Reimbursement Amount with respect to such Loan REMIC Regular Interest for
such Distribution Date; and
(xiii) as deemed distributions of additional interest with
respect to Loan REMIC Regular Interest SS-1, Loan REMIC Regular Interest
SS-2, Loan REMIC Regular Interest SS-3 and Loan REMIC Regular Interest
SS-4, in that order, in each case up to the aggregate amount of compound
interest on the aggregate unreimbursed amount of Unfunded Principal Balance
Reductions in respect of the subject Loan REMIC Regular Interest from time
to time at the related Loan REMIC Remittance Rate in effect from time to
time.
Any Net Prepayment Consideration distributed to any Class of Regular
Interest Certificates on any Distribution Date that is allocable to the
Sangertown Square Trust Mortgage Loan or any Sangertown Square REO Trust
Mortgage Loan shall, in each case, be deemed to have been distributed from the
Sangertown Square Loan REMIC to REMIC I in respect of the Loan REMIC Regular
Interests on a pro rata basis in accordance with the respective amounts of
principal deemed distributed with respect thereto from the Sangertown Square
Loan REMIC to REMIC I on such Distribution Date.
The actual distributions made by the Trustee on each Distribution Date
in respect of the REMIC III Certificates, the Class R-II Certificates and the
Class R-I Certificates pursuant to Section 4.01(a), Section 4.01(b), Section
4.01(c) or Section 9.01, as applicable, shall be deemed to have been so made in
part from the amounts deemed distributed with respect to the Loan REMIC Regular
Interests on such Distribution Date pursuant to this Section 4.01(l).
Notwithstanding the deemed distributions on the Loan REMIC Regular Interests
described in this Section 4.01(l), actual distributions of funds from the
Collection Account shall be made only in accordance with Section 4.01(a),
Section 4.01(b), Section 4.01(c), Section 4.01(d) or Section 9.01, as
applicable.
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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"), which shall also include 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 previously allocated Realized Losses and Additional Trust
Fund Expenses;
(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 the
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 Determination Date
and (B) the aggregate amount of unreimbursed Servicing Advances that had
been outstanding 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 the 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 and the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
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(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;
(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 Sangertown
Square Trust Mortgage Loan, during the Sangertown Square 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 amount of any Realized Loss 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, the loan number of the related
Trust Mortgage Loan, the book value of such REO Property and the amount of
REO Revenues and other amounts, if any, Received by the Trust with respect
to such REO Property during the related Collection Period (separately
identifying the portion thereof allocable to distributions on the
Certificates) and, if available, the Appraised Value of such REO Property
as expressed in the most recent appraisal thereof and the date of such
appraisal;
(xiv) with respect to any Trust Mortgage Loan as to which the
related Mortgaged Property became an REO Property during the related
Collection Period (or, in the case of the Sangertown Square Trust Mortgage
Loan, during the Sangertown Square 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 any Sangertown Square REO Property, during the related
Sangertown Square Collection Period), (A) the loan number of the related
Trust Mortgage Loan, (B) a brief description of the basis for the Final
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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 amount of
any Realized Loss 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 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 all Realized Losses incurred during the
related Collection Period (or, in the case of the Sangertown Square Trust
Mortgage Loan or any Sangertown Square REO Trust Mortgage Loan during the
related Sangertown Square Collection Period) and from the Closing Date and
all Additional Trust Fund Expenses (with a description thereof) incurred
during the related Collection Period and 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
due to the allocation of Realized Losses and Additional Trust Fund Expenses
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 Special
Servicer, the Trustee and the Fiscal
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Agent 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 and (B) the aggregate
Appraisal Reduction Amount for all Required Appraisal Loans as of the
related Determination Date;
(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) since the Closing Date;
(xxx) (A) the aggregate amount of servicing compensation in
respect of the Mortgage Pool (separately identifying the amount of each
category of compensation) paid to the Master Servicer, the Special Servicer
and, if payable directly out of the Trust Fund without a reduction in the
servicing compensation otherwise payable to the Master Servicer or the
Special Servicer, to each Sub-Servicer, during the related Collection
Period, and (B) 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
the Class R-I, Class R-II and Class R-III 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.
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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 or any Person
identified by any Certificateholder or Certificate Owner as a prospective
transferee, via the Trustee's internet website, 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.xxxxxxxx.xxx or at such other address as shall be specified by the Trustee
from time to time in the Distribution Date Statement and in one or more written
notices delivered to the other parties hereto, the Controlling Class
Representative (if any), the Certificateholders and the Rating Agencies. In
connection with providing access to the Trustee's internet website, the Trustee
may require the acceptance of a disclaimer. The Trustee shall not be liable for
the dissemination of information in accordance with this Agreement.
The Master Servicer may, but is not required to, make available each
month, to Certificateholders, Certificate Owners (that have been confirmed as
such by the Trustee), the Controlling Class Representative, the Underwriters,
the Rating Agencies or any party hereto, the Certificateholder Reports, on its
internet website. The Master Servicer will make no representations or warranties
as to the accuracy or completeness of any report not prepared by it and will
assume no responsibility for any information for which it is not the original
source.
The Master Servicer's internet website shall initially be located at
"xxx.xxxxxxxx.xxx" or at such other address as shall be specified by the Master
Servicer from time to time in one or more written notices delivered to the other
parties hereto, the Controlling Class Representative (if any), the
Certificateholders and the Rating Agencies. In connection with providing access
to the Master Servicer's internet website, the Master Servicer may require the
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
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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 and the
other corresponding Servicer Reports, 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."
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),
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(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, 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 Certificateholders 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 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 Sections 4.02(a) and (b) 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 Sections 4.02(a) and (b), 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 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
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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.
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 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 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 (exclusive of the
Sangertown Square Trust Mortgage Loan or any Sangertown Square REO Trust
Mortgage Loan, as applicable), 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
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
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)
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(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. (000) 000-0000 (or such alternative number
provided by the Master Servicer to the Trustee in writing) and by telephone at
telephone no. (000) 000-0000 or (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 Master Servicer
Remittance Date. If after such notice by facsimile, the Trustee does not receive
the full amount of such P&I Advances by 10:00 a.m., New York City time, on the
related Distribution Date, then the Trustee (or the Fiscal Agent on its behalf)
shall make the portion of such P&I Advances that was required to be, but was
not, made by the Master Servicer on such Master Servicer Remittance Date. If the
Trustee fails to make any such P&I Advance on the related Distribution Date, but
the Fiscal Agent makes such P&I Advance on such date, then the Trustee shall be
deemed not to be in default hereunder.
If, as of the time on any Master Servicer Remittance Date that the
Master Servicer is to remit the Master Servicer Remittance Amount for such date
to the Trustee, the Master Servicer has not received the full amount of any
required Xxxxxxxxxx Xxxxxx X&X Advance required to be made by the Sangertown
Square Master Servicer with respect to the Sangertown Square Trust Mortgage Loan
or any Sangertown Square REO Trust Mortgage Loan during the month in which such
Master Servicer Remittance Date occurs, then the Master Servicer shall so notify
the Trustee, and the Trustee (or the Fiscal Agent on its behalf) shall, subject
to Section 4.03(c), make a P&I Advance with respect to the Sangertown Square
Trust Mortgage Loan or any Sangertown Square REO Trust Mortgage Loan in an
amount equal to the unmade portion of such required Xxxxxxxxxx Xxxxxx X&X
Advance no later than 10:00 a.m., New York City time, on the related
Distribution Date. If the Trustee fails to make any such P&I Advance on the
related Distribution Date, but the Fiscal Agent makes such P&I Advance on such
date, then the Trustee shall be deemed not to be in default hereunder.
No party hereto shall be required to make a P&I Advance with respect
to any XX Xxxx Non-Trust Mortgage Loan or any successor REO Mortgage Loan with
respect thereto.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer, the Trustee or the Fiscal Agent, as the case may be, pursuant to the
first paragraph of Section 4.03(a) in respect of any Distribution Date shall,
subject to Section 4.03(c) below, equal the aggregate of all Monthly Payments
(other than Balloon Payments) and any Assumed Monthly Payments, in each case net
of related Master Servicing Fees and any related Workout Fees 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 (exclusive of the Sangertown
Square Trust Mortgage Loan or any Sangertown Square REO Trust Mortgage Loan) on
their respective Due Dates during the related Collection Period, 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 it is determined that an Appraisal Reduction Amount exists with
respect to any such Trust Mortgage Loan or REO Trust Mortgage Loan, then each
P&I Advance, if any, required to be made under the first paragraph of Section
4.03(a) in respect of 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 subject P&I Advance that would otherwise be required to be made in respect
of such Trust Mortgage Loan or REO Trust Mortgage Loan, as the case may be,
without regard to this proviso,
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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.
(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 (or, with respect to the
Sangertown Square Trust Mortgage Loan or any Sangertown Square REO Trust
Mortgage Loan, if the Xxxxxxxxxx Xxxxxx X&X Advance covering the same delinquent
Monthly Payment would, if made, constitute a "Nonrecoverable P&I Advance" as
determined by the Sangertown Square Master Servicer pursuant to the Sangertown
Square Servicing Agreement). The determination by the Master Servicer that it
has made a Nonrecoverable P&I Advance pursuant to the first paragraph of Section
4.03(a) or that any proposed P&I Advance, if made pursuant to the first
paragraph of Section 4.03(a), would constitute a Nonrecoverable P&I Advance,
shall be evidenced by an Officer's Certificate delivered to the Trustee, the
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), 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. 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. The Trustee and the Fiscal Agent shall be entitled to rely,
conclusively, on any determination by the Master Servicer that a P&I Advance, if
made pursuant to the first paragraph of Section 4.03(a), would be a
Nonrecoverable P&I Advance (and, on any determination by the Sangertown Square
Master Servicer that a Xxxxxxxxxx Xxxxxx X&X Advance would, if made under the
Sangertown Square Servicing Agreement, constitute a "Nonrecoverable P&I Advance"
thereunder); provided, however, that if the Master Servicer has failed to make a
P&I Advance pursuant to the first paragraph of Section 4.03(a) for reasons other
than a determination by the Master Servicer that such P&I Advance would be a
Nonrecoverable P&I Advance, or if the Sangertown Square Master Servicer has
failed to make a Xxxxxxxxxx Xxxxxx X&X Advance pursuant to the Sangertown Square
Servicing Agreement for reasons other than a determination by the Sangertown
Square Master Servicer, that such Xxxxxxxxxx Xxxxxx X&X Advance would be a
"Nonrecoverable P&I Advance" under the Sangertown Square Servicing Agreement,
then the Trustee or Fiscal Agent shall make such Advance within the time periods
required by Section 4.03(a) unless the Trustee or the 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 pursuant to this Section
4.03 with respect to a Specially Serviced Trust Mortgage Loan or any successor
REO Trust Mortgage Loan with respect thereto is a Nonrecoverable P&I Advance,
the Special Servicer shall report to the Master Servicer and the Trustee the
Special Servicer's determination. The Master Servicer and the Trustee shall be
entitled to conclusively rely on such determination.
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(d) The Master Servicer, the Trustee and the Fiscal Agent shall each
be entitled to receive interest at the Reimbursement Rate in effect from time to
time, compounded annually, accrued on the amount of each 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 Master Servicer
Remittance Date. Interest so accrued on any P&I Advance made under this Section
4.03 shall be payable: (i) first, out of any Default Charges collected on or in
respect of the Mortgage Pool during the same Collection Period in which such
Advance is reimbursed; and (ii) then, if and to the extent that such Default
Charges are insufficient to cover such interest, but only if the related Advance
is being reimbursed at the same time or has been previously reimbursed pursuant
to this Agreement, out of general collections on the Trust Mortgage Loans and
REO Properties on deposit in the Pool Custodial Account; provided that, in the
case of P&I Advances in respect of the XX Xxxx Trust Mortgage Loans or any
successor REO Trust Mortgage Loans with respect thereto, Default Charges and
other amounts collected on or with respect to the XX Xxxx Non-Trust Mortgage
Loans or any successor REO Trust Mortgage Loans with respect thereto shall be
available to pay interest on such P&I Advances as and to the extent provided in
Section 3.05A and the XX Xxxx Co-Lender Agreement. The Master Servicer shall, in
accordance with Section 3.05(a), reimburse itself, the Trustee or the 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
Mortgage Pool immediately (as contemplated by Section 3.05(a)(vii)), any of the
Master Servicer, the Trustee or the Fiscal Agent, as applicable, may, in its
sole discretion, elect to obtain reimbursement for such Nonrecoverable P&I
Advance over a period of time 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 the
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 the Fiscal
Agent, or a breach of any other contractual obligation owed to the
Certificateholders by any party to this Agreement.
SECTION 4.04. Unfunded Principal Balance Reductions.
(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
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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. 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. In circumstances where
there are multiple Corresponding REMIC II Regular Interests with respect to a
Class of Principal Balance Certificates, the reductions to the respective
Uncertificated Principal Balances of such Corresponding REMIC II Regular
Interests as contemplated by the prior sentence shall be made as follows: (i) in
the case of the Class A-1 Certificates, such reductions shall be made first to
the Uncertificated Principal Balance of REMIC II Regular Interest A-1-1 until
such Uncertificated Principal Balance is reduced to zero, then to the
Uncertificated Principal Balance of REMIC II Regular Interest A-1-2 until such
Uncertificated Principal Balance is reduced to zero and last to the
Uncertificated Principal Balance of REMIC II Regular Interest A-1-3 until such
Uncertificated Principal Balance is reduced to zero; (ii) in the case of the
Class A-2 Certificates, such reductions shall be made first to the
Uncertificated Principal Balance of REMIC II Regular Interest A-2-1 until such
Uncertificated Principal Balance is reduced to zero and then to the
Uncertificated Principal Balance of REMIC II Regular Interest A-2-2 until such
Uncertificated Principal Balance is reduced to zero; (iii) in the case of the
Class A-3 Certificates, such reductions shall be made first to the
Uncertificated Principal Balance of REMIC II Regular Interest A-3-1 until such
Uncertificated Principal Balance is reduced to zero, then to the Uncertificated
Principal Balance of REMIC II Regular Interest A-3-2 until such Uncertificated
Principal Balance is reduced to zero and last to the Uncertificated Principal
Balance of REMIC II Regular Interest A-3-3 until such Uncertificated Principal
Balance is reduced to zero; (iv) in the case of the Class A-4 Certificates, such
reductions shall be made first to the Uncertificated Principal Balance of REMIC
II Regular Interest A-4-1 until such Uncertificated Principal Balance is reduced
to zero and then to the Uncertificated Principal Balance of REMIC II Regular
Interest A-4-2 until such Uncertificated Principal Balance is reduced to zero;
(v) in the case of the Class D Certificates, such reductions shall be made first
to the Uncertificated Principal Balance of REMIC II Regular Interest D-1 until
such Uncertificated Principal Balance is reduced to zero and then to the
Uncertificated Principal Balance of REMIC II Regular Interest D-2 until such
Uncertificated Principal Balance is reduced to zero; and (vi) in the case of the
Class G Certificates, such reductions shall be made first to the Uncertificated
Principal Balance of REMIC II Regular Interest G-1 until such Uncertificated
Principal Balance is reduced to zero and then to the Uncertificated Principal
Balance of REMIC II Regular Interest G-2 until such Uncertificated Principal
Balance is reduced to zero. All such reductions in the Uncertificated Principal
Balances 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
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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 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.
(d) On each Distribution Date, following the deemed distributions to
be made in respect of the Loan REMIC Regular Interests pursuant to Section
4.01(l), the Uncertificated Principal Balance of each Loan REMIC 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 Sangertown Square Loan Component that will be outstanding immediately
following such Distribution Date. Any such reductions in the Uncertificated
Principal Balances of the respective Loan REMIC 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 the next succeeding Distribution Date; 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 the next succeeding Distribution Date. 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 during the related Collection Period and the upward adjustment
of the Adjusted Principal Distribution Amount for such Distribution Date as a
result of such Recovered Amounts.
(b) In addition, in connection with its 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 Unfunded Principal Balance Reductions had resulted
from the reimbursement out of general collections of principal on the Mortgage
Pool of the particular Advances relating to the Recovered Amounts associated
with such
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reinstatement of outstanding principal. 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
the next succeeding Distribution Date. The amount of each such increase in the
Uncertificated Principal Balance of a REMIC II Regular Interest on any
Distribution Date shall be referred to herein as the "REMIC II Principal
Reinstatement Amount" in respect of such REMIC II Regular Interest for such
Distribution Date.
(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). 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
actual and deemed 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 Available Distribution Amount
for each Distribution Date and shall allocate such amounts among
Certificateholders in accordance with this Agreement, and the Trustee shall have
no obligation to
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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 and Class D 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, Class R-LR 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 000 Xxxxx
XxXxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed Securities
Trust Services Group--LB-UBS Commercial Mortgage Trust, Series 2003-C8. The
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Certificate Registrar 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, the 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 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
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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, the
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 Class R-I, Class R-II, Class R-III
or 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 Class R-I, Class R-II, Class R-III or
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 Sangertown Square Trust Mortgage Loan or any
Sangertown Square 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
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Certificate Registrar (in the case of a Definitive Certificate) or the
Transferor (in the case of ownership interests in a Book-Entry Certificate) any
certification and/or Opinion of Counsel contemplated by the second preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that either: (i) such Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) the purchase and holding of
such Certificate or interest therein by such Transferee is exempt from the
prohibited transaction provisions of Sections 406(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 Agreement from any prospective
Transferee to whom such Person
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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; 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 Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the
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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 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 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 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 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.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those
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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 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
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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 in writing by each of the Rating Agencies, such
succession will not result in an Adverse Rating Event, and (ii) such successor
or surviving Person makes the applicable representations and warranties set
forth in Section 3.23 (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.
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 XX Xxxx 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
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the Special Servicer against any liability to the Trust Fund, the Trustee, the
Certificateholders or the XX Xxxx 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 XX Xxxx Loan Pair is involved, such indemnity shall be payable out of the XX
Xxxx Custodial Account pursuant to Section 3.05A and, to the extent not solely
attributable to the XX Xxxx Non-Trust Mortgage Loans, shall also be payable out
of the Pool Custodial Account if amounts on deposit in the XX Xxxx Custodial
Account are insufficient therefor. 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 XX Xxxx Loan Pair
is affected, the rights of the Certificateholders and the related XX Xxxx
Non-Trust Mortgage Loan Noteholder (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; provided,
however, that if and to the extent a XX Xxxx Loan Pair and/or a XX Xxxx
Non-Trust Mortgage Loan Noteholder is involved, such expenses, costs and
liabilities shall be payable out of the XX Xxxx Custodial Account pursuant to
Section 3.05A and, to the extent attributable to a XX Xxxx Trust Mortgage Loan
or any other Trust Mortgage Loan, shall also be payable out of the Pool
Custodial Account if amounts on deposit in the XX Xxxx Custodial Account 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
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Certificateholder or any XX Xxxx 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 following paragraph and, further, 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 of the Rating Agencies confirms in writing
that the successor's appointment will not result in an Adverse Rating Event,
(iii) the resigning party pays all costs and expenses in connection with such
resignation and the resulting transfer of servicing, and (iv) the successor
accepts appointment prior to the effectiveness of such resignation and agrees in
writing to be bound by the terms and conditions of this Agreement. Neither the
Master Servicer nor the Special Servicer shall be permitted to resign except as
contemplated above in this Section 6.04(a).
Notwithstanding anything to the contrary set forth in this Agreement,
in the event the proposed successor to the Special Servicer contemplated by the
next to last sentence of the prior paragraph is CIGNA Investment Group, Inc. or
any of its Affiliates (each of CIGNA Investment Group, Inc. and any such
Affiliate, a "CIGNA Entity") then, prior to the date of effectiveness of any
such replacement of the Special Servicer with a CIGNA Entity, (i) this Agreement
shall be amended, in accordance with Section 11.01, at the expense of the
resigning Special Servicer, to provide for a Special Servicer with respect to
the 000 Xxxx 00xx Xxxxxx Mortgage Loan and a separate Special Servicer with
respect to the other Serviced Mortgage Loans and any REO Properties, and (ii) a
separate Special Servicer (other than a CIGNA Entity) shall be appointed in
accordance with this Agreement (as amended in accordance with clause (i) above)
with respect to the 000 Xxxx 00xx Xxxxxx Mortgage Loan. Further, no appointment
of a CIGNA Entity as a successor to the Special Servicer hereunder shall be
effective until (i) the assumption by a separate successor Special Servicer
(other than a CIGNA Entity) with respect to the 000 Xxxx 00xx Xxxxxx Mortgage
Loan of all its responsibilities, duties and liabilities under this Agreement
(as amended) as Special Servicer with respect such Mortgage Loan, and (ii) each
of the Rating Agencies has confirmed in writing that such appointment will not
result in an Adverse Rating Event with respect to any Class of Certificates
(such Rating Agency confirmation to be an expense of the resigning Special
Servicer).
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(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 privileges hereunder to any other Person
or, except as provided in Sections 3.22, 4.07, 7.01(c) and 7.01(d), 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, 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 XX Xxxx 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 XX Xxxx 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 XX Xxxx
Non-Trust Mortgage Loan Noteholder with its most recent publicly available
financial statements 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) Subject to the following paragraph, the Holder or Holders of the
Certificates evidencing a majority of the Voting Rights allocated to the
Controlling Class may at any time and from time to time designate a Person 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 XX Xxxx 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 of
the Rating Agencies that the appointment of such Person will not result in an
Adverse Rating Event; (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 resigning 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. Such resigning Special
Servicer shall cooperate with the Trustee and the replacement Special Servicer
in effecting the termination of the resigning Special Servicer's
responsibilities and rights hereunder, including the transfer within two
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 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 XX Xxxx Non-
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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.
Notwithstanding anything to the contrary set forth in this Agreement,
in the event the Holder or Holders of the Certificates evidencing a majority of
the Voting Rights allocated to the Controlling Class at any time notify the
Trustee that such Holder or Holders intend to appoint a CIGNA Entity to serve as
Special Servicer hereunder or 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), then, prior to the date
of effectiveness of any such replacement of the Special Servicer with a CIGNA
Entity, (i) this Agreement shall be amended, in accordance with Section 11.01,
at the expense of the Controlling Class Certificateholders that desire to make
such appointment, to provide for a Special Servicer with respect to the 000 Xxxx
00xx Xxxxxx Mortgage Loan and a separate Special Servicer with respect to the
other Serviced Mortgage Loans and any REO Properties, and (ii) a separate
Special Servicer (other than a CIGNA Entity) shall be appointed in accordance
with this Agreement (as amended in accordance with clause (i) above) with
respect to the 000 Xxxx 00xx Xxxxxx Mortgage Loan. Further, no appointment of a
CIGNA Entity as a successor to the Special Servicer hereunder shall be effective
until (i) the assumption by a separate successor Special Servicer (other than a
CIGNA Entity) with respect to the 000 Xxxx 00xx Xxxxxx Mortgage Loan of all its
responsibilities, duties and liabilities under this Agreement (as amended) as
Special Servicer with respect such Mortgage Loan, and (ii) each of the Rating
Agencies has confirmed in writing that such appointment will not result in an
Adverse Rating Event with respect to any Class of Certificates (such Rating
Agency confirmation to be an expense of the Controlling Class Certificateholders
that desire to make such appointment).
Any out-of-pocket costs and expenses incurred in connection with the
removal of a Special Servicer pursuant to this Section 6.09 and its replacement
by a Person designated by the Holder or Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class, that are not
paid by the replacement Special Servicer shall be paid by such Holder or
Holders.
(b) The Holder or Holders of the Certificates evidencing a majority of
the Voting Rights allocated to the Controlling Class 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 Holder or
Holders evidencing a majority of the Voting Rights allocated to the Controlling
Class 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; provided that, if the Controlling Class
consists 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). 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, Lennar Partners, Inc. (or an Affiliate thereof)
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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 Controlling Class of
Certificates consists of Book-Entry Certificates, then the rights of the Holders
of the Controlling Class of Certificates 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.
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 XX Xxxx Non-Trust Mortgage Loan
Noteholder, if a XX Xxxx Loan Pair 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 Special Servicer with respect to the following
actions of the Special Servicer; and, further
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subject to Section 6.11(b), the Special Servicer will not be permitted to take
(or consent to the Master Servicer's taking) any of the following actions unless
and until it has notified the Controlling Class Representative in writing (with
a copy to the related XX Xxxx Non-Trust Mortgage Loan Noteholder, if a XX Xxxx
Loan Pair is involved) and the Controlling Class Representative has not objected
in writing within 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 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 within such 10-Business Day
period, then the Controlling Class Representative will be deemed to have
approved the taking of the subject action):
(i) any foreclosure upon or comparable conversion (which may
include acquisitions of an Administered REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as come
into and continue in default;
(ii) any modification, extension, amendment or waiver of a
monetary term (including the timing of payments, but excluding the waiver
of Default Charges) or any material non-monetary term (including any
material term relating to insurance) of a Specially Serviced Mortgage Loan;
(iii) any proposed sale of an Administered REO Property (other
than in connection with the termination of the Trust Fund) for less than
the Purchase Price;
(iv) any acceptance of a discounted payoff with respect to a
Specially Serviced Mortgage Loan;
(v) any determination to bring a Mortgaged Property securing a
Specially Serviced Mortgage Loan or an Administered REO Property into
compliance with applicable environmental laws or to otherwise address
Hazardous Materials located at a Mortgaged Property securing a Specially
Serviced Mortgage Loan or an Administered REO Property;
(vi) any release of collateral for a Specially Serviced Mortgage
Loan (other than in accordance with the terms of, or upon satisfaction of,
such Mortgage Loan);
(vii) any acceptance of substitute or additional collateral for a
Specially Serviced Mortgage Loan (other than in accordance with the terms
of such Mortgage Loan);
(viii) any waiver of a "due-on-sale" or "due-on-encumbrance"
clause with respect to any Serviced Mortgage Loan;
(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; and
(x) any acceptance of an assumption agreement releasing a
borrower from liability under a Serviced Mortgage Loan;
provided that, if the Special Servicer determines that immediate action is
necessary to protect the interests of the Certificateholders (as a collective
whole) (or, in the case of the XX Xxxx Loan Group, to
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protect the interests of the Certificateholders and the affected XX Xxxx
Non-Trust Mortgage Loan Noteholders (as a collective whole)), then the Special
Servicer may take (or consent to the Master Servicer's taking) any such action
(other than an action contemplated by clause (ix) above) without waiting for the
Controlling Class Representative's response.
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. Upon reasonable request, the Special Servicer shall
provide the Controlling Class Representative with any information in the Special
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), and insofar as a XX Xxxx Loan Pair is
involved, to the related XX Xxxx Non-Trust Mortgage Loan Noteholder.
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 (and, in the case of the XX Xxxx Loan Group, the XX Xxxx
Non-Trust Mortgage Loan Noteholders) of any release or substitution of
collateral for a Serviced Mortgage Loan 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, as contemplated by Section 6.11(a) or any
other provision of this Agreement, may (and the Special Servicer shall ignore
and act without regard to any such advice, direction or objection that the
Special Servicer has determined, in its reasonable, good faith judgment, would)
require or cause the Special Servicer to violate any provision of this Agreement
(exclusive of Section 6.11(a)) (including the Special 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 the
REMIC Provisions. Furthermore, the Special Servicer shall not be obligated to
seek approval from the Controlling Class Representative 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 Mortgage Loan; 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 the Special Servicer
considers to be consistent with the Servicing Standard.
Also notwithstanding anything herein to the contrary, unless a XX Xxxx
Change of Control Event exists, then the Controlling Class Representative shall
not be authorized to exercise any of its rights and powers provided for in
Section 6.11(a) with respect to the XX Xxxx Loan Group, and Section 6.11A(a)
shall apply with respect to the XX Xxxx Loan Group, instead of Section 6.11(a).
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(c) The Controlling Class Representative is authorized to exercise the
rights and powers of the Trustee, as holder of the Mortgage Note for the
Sangertown Square Trust Mortgage Loan, under each of Section 3.23 of the
Sangertown Square Co-Lender and Servicing Agreement and Section 6.11A of the
Series 2000-C3 Pooling and Servicing Agreement, in each case as applicable.
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 Sangertown Square Master Servicer, the Sangertown
Square Special Servicer and the Sangertown Square Non-Trust Mortgage Loan
Noteholder (and from time to time shall ensure that such parties remain
similarly informed) that the Controlling Class Representative is entitled to
exercise such rights and powers of the Trustee, in its capacity as holder of the
Mortgage Note for the Sangertown Square Trust Mortgage Loan. 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 Sangertown
Square Trust Mortgage Loan. Notwithstanding the foregoing, the Controlling Class
Representative may only exercise any purchase option with respect to the
Sangertown Square Trust Mortgage Loan pursuant to Section 4.03 of the Sangertown
Square Co-Lender and Servicing Agreement in its individual capacity and not on
behalf of the Trust.
(d) Subject to Section 6.11(c), Section 7.01(e) and each other section
hereof that specifically addresses a particular matter with respect to the
Sangertown Square Trust Mortgage Loan, if the Trustee is requested to take any
action in its capacity as holder of the Mortgage Note for the Sangertown Square
Trust Mortgage Loan, pursuant to the Sangertown Square Co-Lender and Servicing
Agreement and/or the Series 2000-C3 Pooling and 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 shall not be required to take any action (i) which relates to directing
or approving any servicing related action under the Sangertown Square Servicing
Agreement or the Sangertown Square 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 or (ii) is not permitted under applicable law or the terms of the
Sangertown Square Co-Lender and Servicing Agreement or the Sangertown Square
Servicing Agreement.
(e) The Controlling Class Representative will have no liability to the
Certificateholders or the XX Xxxx Non-Trust Mortgage Loan Noteholders for any
action taken, or for refraining from the taking of any action, in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
the Controlling Class Representative 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. 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 to the 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
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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.
(f) A XX Xxxx Non-Trust Mortgage Loan Noteholder shall be entitled to
receive, upon request made to any party hereto, a copy of any notice or report
required to be delivered (upon request or otherwise) by such party to the
Controlling Class Representative or the Trustee with respect to the related XX
Xxxx Loan Pair. Any such party shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such copies.
SECTION 6.11A. Certain Powers of the XX Xxxx Non-Trust Mortgage Loan
Noteholders.
(a) Subject to Section 6.11A(b), the XX Xxxx Controlling Non-Trust
Mortgage Loan Noteholder will be entitled to advise the Special Servicer with
respect to the XX Xxxx Specially Designated Servicing Actions with respect to
the XX Xxxx Loan Group and, further subject to Section 6.11A(b), the Special
Servicer will not be permitted to take (or consent to the Master Servicer's
taking) any of the XX Xxxx Specially Designated Servicing Actions with respect
to the XX Xxxx Loan Group unless and until it has notified the XX Xxxx
Controlling Non-Trust Mortgage Loan Noteholder in writing (with a copy to the
Controlling Class Representative) and the XX Xxxx Controlling Non-Trust Mortgage
Loan Noteholder has not objected in writing within 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 within such
10-Business Day period, then the XX Xxxx Controlling Non-Trust Mortgage Loan
Noteholder will be deemed to have approved of the subject action); provided
that, in the event that the Special Servicer determines that immediate action is
necessary to protect the interests of the Certificateholders and the XX Xxxx
Non-Trust Mortgage Loan Noteholders (as a collective whole), the Special
Servicer may take (or consent to the Master Servicer's taking) any such action
without waiting for the XX Xxxx Controlling Non-Trust Mortgage Loan Noteholder's
response.
In addition, subject to Section 6.11A(b), the XX Xxxx Controlling
Non-Trust Mortgage Loan Noteholder may direct the Special Servicer to take, or
to refrain from taking, such actions with respect to the servicing and
administration of any XX Xxxx Mortgage Loan that is a Specially Serviced
Mortgage Loan or any XX Xxxx REO Property as the XX Xxxx Controlling Non-Trust
Mortgage Loan Noteholder may deem advisable or as to which provision is
otherwise made herein. Upon reasonable request, the Special Servicer shall, with
respect to the XX Xxxx Loan Group, provide the XX Xxxx Controlling Non-Trust
Mortgage Loan Noteholder with any information in the Special 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 Mortgage
Loans) and the Special Servicer (with respect to Specially Serviced Mortgage
Loans), as applicable, shall notify the XX Xxxx Non-Trust Mortgage Loan
Noteholders and the Controlling Class Representative of any release or
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substitution of collateral for the XX Xxxx Loan Group even if such release or
substitution is required by the terms of the XX Xxxx Mortgage Loans.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the XX Xxxx Controlling Non-Trust Mortgage
Loan Noteholder, as contemplated by Section 6.11A(a), may (and the Special
Servicer shall ignore and act without regard to any such advice, direction or
objection that the Special Servicer has determined, in its reasonable, good
faith judgment, would) require or cause the Special Servicer to violate any
provision of this Agreement (exclusive of Section 6.11A(a)) (including the
Special Servicer's obligation to act in accordance with the Servicing Standard),
the related loan documents or applicable law or that would result in an Adverse
REMIC Event or an Adverse Grantor Trust Event. Furthermore, the Special Servicer
shall not be obligated to seek approval from the XX Xxxx Controlling Non-Trust
Mortgage Loan Noteholder for any actions to be taken by the Special Servicer
with respect to the workout or liquidation of any particular Specially Serviced
Mortgage Loan in the XX Xxxx Loan Group if:
(i) the Special Servicer has, as provided in Section 6.11A(a),
notified the XX Xxxx Controlling Non-Trust Mortgage Loan Noteholder in
writing of various actions that the Special servicer proposes to take with
respect to the workout or liquidation of that Mortgage Loan; and
(ii) for 60 days following the first such notice, the XX Xxxx
Controlling Non-Trust Mortgage Loan Noteholder 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, if a XX Xxxx
Change of Control Event exists with respect to the XX Xxxx Loan Group, then: (i)
the XX Xxxx Controlling Non-Trust Mortgage Loan Noteholder shall not be
authorized to exercise any of its rights and powers provided for in Section
6.11A(a) with respect to the XX Xxxx Loan Group (except to the extent provided
in Section 6.11(a)); and (ii) Section 6.11(a) shall apply with respect to the XX
Xxxx Loan Group, instead of Section 6.11A(a).
(c) No XX Xxxx Non-Trust Mortgage Loan Noteholder will have any
liability to the Trust or the Certificateholders for any action taken, or for
refraining from the taking of any action, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that a XX Xxxx
Non-Trust Mortgage Loan Noteholder 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) A XX Xxxx Non-Trust Mortgage Loan Noteholder may designate, in
writing, a representative to exercise its rights and powers under this Section
6.11A or otherwise under this Agreement or the XX Xxxx Co-Lender Agreement
(copies of such writing to be delivered to each of the parties hereto). Such
designation shall remain in effect until it is revoked by the subject XX Xxxx
Non-Trust Mortgage Loan Noteholder by a writing delivered to each of the parties
hereto.
(e) Each XX Xxxx 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 XX Xxxx
Loan Group or any XX Xxxx REO Property by any other party hereto.
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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.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default and Sangertown Square 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 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
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, the required payments to the XX
Xxxx Non-Trust Mortgage Loan Noteholders on any Master Servicer Remittance
Date, which failure continues unremedied until 11:00 a.m. (New York City
time) on the Business Day next following such Master Servicer Remittance
Date; 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 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 XX Xxxx
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 XX Xxxx 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 XX Xxxx 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 XX Xxxx 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 XX Xxxx 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 Moody's has (1)
qualified, downgraded or withdrawn its rating or ratings of one or more
Classes of Certificates or (2) placed one or more Classes of the
Certificates on "watch status" (and such "watch status" placement shall not
have been withdrawn by Moody's within 60 days of the date when the
Servicing Officer of the Master Servicer or the Special Servicer, as the
case may be, obtained such actual knowledge) and, in the
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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 any of the Certificates by S&P are qualified,
downgraded or withdrawn in connection with the removal.
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) - (ix) and
(xi) 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. If any Event of Default described in clause (x) of subsection
(a) above shall occur with respect to the Master Servicer or the Special
Servicer (in either case, under such circumstances, for purposes of this Section
7.01(b), the "Defaulting Party"), the Trustee shall, by notice in writing (to be
sent immediately by facsimile transmission) to the Defaulting Party (with a copy
of such notice to each other party hereto and the Rating Agencies), terminate,
subject to Section 7.01(c), 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, within 30 days following the occurrence of such Event of
Default. From and after the receipt by the Defaulting Party of such written
notice of termination, all authority and power of the Defaulting Party under
this Agreement, whether with respect to the Certificates (other than as a holder
of any Certificate), 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 Trust 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 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 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
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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 Trust Mortgage Loan or Serviced Non-Trust Mortgage Loan
or (ii) if the Special Servicer is the Defaulting Party, the transfer within two
Business Days to the Trustee or a successor Special Servicer for administration
by it of all cash amounts that shall at the time be or should have been credited
by the Special Servicer to an REO Account, 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 Serviced Mortgage Loan or Administered 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 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) In the case of an Event of Default under Section 7.01(a)(x) or
(xi) of which the Trustee has notice, the Trustee shall provide written notice
thereof to the Master Servicer promptly upon receipt of such notice.
Notwithstanding Section 7.01(b), if the Master Servicer receives a notice of
termination under Section 7.01(b) solely due to an Event of Default under
Section 7.01(a)(x) or (xi), and if the terminated Master Servicer provides the
Trustee with the appropriate "request for proposal" materials within five
Business Days following such termination, then the Master Servicer shall
continue to serve in such capacity hereunder until a successor thereto is
selected in accordance with this Section 7.01(c) or the expiration of 45 days
from the Master Servicer's receipt of the notice of termination, whichever
occurs first. Upon receipt of such "request for proposal" materials from the
terminated Master Servicer, the Trustee shall promptly thereafter (using such
"request for proposal" materials) solicit good faith bids for the rights to
master service the Serviced Mortgage Loans and, to the extent applicable, the
Sangertown Square Trust Mortgage Loan under this Agreement from at least three
(3) Persons qualified to act as a successor Master Servicer hereunder in
accordance with Section 6.02 and Section 7.02 (any such Person so qualified, a
"Qualified Bidder") or, if three (3) Qualified Bidders cannot be located, then
from as many Persons as the Trustee can determine are Qualified Bidders;
provided that at the Trustee's request, the terminated Master Servicer shall
supply the Trustee with the names of Persons from whom to solicit such bids; and
provided, further, that the Trustee shall not be responsible if less than three
(3) or no Qualified Bidders submit bids for the right to master service the
Serviced Mortgage Loans and, to the extent applicable, the Sangertown Square
Trust Mortgage Loan under this Agreement. The bid proposal shall require any
Successful Bidder (as defined below), as a condition of such bid, to enter into
this Agreement as successor Master Servicer, and to agree to be bound by the
terms hereof, within 45 days after the receipt of notice of termination by the
terminated Master Servicer. The Trustee shall solicit bids: (i) on the basis of
such successor Master Servicer retaining all Sub-Servicers to continue the
primary servicing of the Serviced Mortgage Loans pursuant
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to the terms of the respective Sub-Servicing Agreements and to enter into a
Sub-Servicing Agreement with the terminated Master Servicer to sub-service each
of the Serviced Mortgage Loans not subject to a Sub-Servicing Agreement at a
sub-servicing fee rate per annum equal to the Master Servicing Fee Rate minus
one and one-half (1.5) basis points per Serviced Mortgage Loan serviced (each, a
"Servicing-Retained Bid"); and (ii) on the basis of terminating each
Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate in
accordance with Section 3.22 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing Released Bid) (the "Successful Bidder")
to act as successor Master Servicer hereunder. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor Master Servicer
pursuant to the terms hereof (and, if the successful bid was a
Servicing-Retained Bid, to enter into a Sub-Servicing Agreement with the
terminated Master Servicer as contemplated above) no later than 45 days after
the receipt of notice of termination by the terminated Master Servicer.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
The terminated Master Servicer shall be responsible for all
out-of-pocket expenses incurred in connection with the attempt to sell its
rights to master service the Serviced Mortgage Loans and, to the extent
applicable, the Sangertown Square Trust Mortgage Loan, which expenses are not
reimbursed to the party that incurred such expenses pursuant to the preceding
paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 45 days after the terminated Master Servicer
received written notice of termination or no Successful Bidder was identified
within such 45-day period, the terminated Master Servicer shall reimburse the
Trustee for all reasonable "out-of-pocket" expenses incurred by the Trustee in
connection with such bid process and the Trustee shall have no further
obligations under this Section 7.01(c). The Trustee thereafter may act or may
select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
(d) Notwithstanding Section 7.01(b) and Section 7.04, if any Event of
Default on the part of the Master Servicer occurs that affects a XX Xxxx
Non-Trust Mortgage Loan, and the Master Servicer is not otherwise terminated in
accordance with Section 7.01(b), then, at the request of the related XX Xxxx
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 XX Xxxx Loan Group 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 XX Xxxx Loan Group; provided that no XX
Xxxx Non-Trust Mortgage Loan Noteholder may terminate, or require the Trustee to
terminate, the Master Servicer. 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(d), the Master Servicer shall obtain written confirmation from
each Rating Agency that such appointment will not result in an Adverse Rating
Event with respect to any Class of Certificates. The related Sub-Servicing
Agreement shall provide that any Sub-Servicer appointed by the Master Servicer
at the request of the Trustee in accordance with this Section 7.01(d) shall be
responsible for all duties, and shall be entitled to all compensation, of the
Master Servicer under
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this Agreement with respect to the XX Xxxx Loan Group, except that the Master
Servicer shall be entitled to retain a portion of the Master Servicing Fee for
each XX Xxxx Trust Mortgage Loan calculated at 0.015% per annum. Such
Sub-Servicing Agreement shall also provide that, unless directed otherwise by
the then current holders of the Mortgage Notes for the XX Xxxx Loan Group, such
Sub-Servicer shall agree to become the master servicer under a separate
servicing agreement (as contemplated by the XX Xxxx Co-Lender Agreement) in the
event that the XX Xxxx Loan Group 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 XX Xxxx Loan Group and the XX Xxxx
Mortgaged Properties 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(d) 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 (as evidenced in writing by each Rating Agency). 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(d), 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 XX Xxxx
Non-Trust Mortgage Loan, and the Special Servicer is not otherwise terminated in
accordance with Section 7.01(b), then the related XX Xxxx Non-Trust Mortgage
Loan Noteholder may require the Trustee to terminate the duties and obligations
of the Special Servicer with respect to the XX Xxxx Loan Group only, but as to
no other Serviced Mortgage Loan; and, in such event, 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
XX Xxxx Non-Trust Mortgage Loan Noteholder's request, a replacement special
servicer with respect to the XX Xxxx Loan Group. In connection with the
appointment of a replacement special servicer with respect to the XX Xxxx Loan
Group at the request of a XX Xxxx Non-Trust Mortgage Loan Noteholder in
accordance with this Section 7.01(d), the Trustee shall obtain written
confirmation from each Rating Agency that such appointment will not result in an
Adverse Rating Event with respect to any Class of Certificates (such Rating
Agency confirmation to be an expense of the requesting XX Xxxx Non-Trust
Mortgage Loan Noteholder). Any replacement special servicer appointed at the
request of a XX Xxxx Non-Trust Mortgage Loan Noteholder in accordance with this
Section 7.01(d) shall be responsible for all duties, and shall be entitled to
all compensation, of the Special Servicer under this Agreement with respect to
the XX Xxxx Loan Group. Any replacement special servicer appointed at the
request of a XX Xxxx Non-Trust Mortgage Loan Noteholder in accordance with this
Section 7.01(d) hereby agrees to become the special servicer under a separate
servicing agreement (as contemplated by the XX Xxxx Co-Lender Agreement) in the
event that the XX Xxxx Loan Group is no longer to be serviced and administered
hereunder (unless directed otherwise by the then current holders of the Mortgage
Notes for the XX Xxxx Loan Group), 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 XX Xxxx Loan Group
and the XX Xxxx Mortgaged Properties 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 XX Xxxx Non-Trust
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Mortgage Loan Noteholder in accordance with this Section 7.01(d) shall at any
time resign or be terminated, 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 with respect to any Class of Certificates (as
evidenced in writing by each Rating Agency).
If a replacement special servicer is appointed with respect to the XX
Xxxx Loan Group at the request of a XX Xxxx Non-Trust Mortgage Loan Noteholder
in accordance with this Section 7.01(d) (any such replacement special servicer,
a "XX Xxxx 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 XX Xxxx Special Servicer, insofar as such
duties and obligations relate to the XX Xxxx Loan Group, 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 XX Xxxx Special Servicer 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 XX Xxxx Special Servicer, insofar as such information,
funds, documents, instruments and/or other items relate to the XX Xxxx Loan
Group, 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
Specially Serviced Trust Mortgage Loans pursuant to Section 3.18, the term
"Special Servicer" shall mean the XX Xxxx Special Servicer, if such Specially
Serviced Trust Mortgage Loan is a XX Xxxx Trust Mortgage Loan, 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 granting the Special Servicer any protections,
limitations on liability, immunities and/or indemnities hereunder, the term
"Special Servicer" shall mean each of the XX Xxxx Special Servicer and the
General Special Servicer; and (vi) 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
XX Xxxx Special Servicer or the General Special Servicer, as applicable.
References in this Section 7.01(d) to "General Special Servicer" means the
Person performing the duties and obligations of special servicer with respect to
the Mortgage Pool (exclusive of the XX Xxxx Loan Group, if a XX Xxxx 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 XX Xxxx Non-Trust Mortgage Loan Noteholder
under this Section 7.01(d).
(e) Pursuant to the terms of the Sangertown Square Servicing
Agreement, if a Sangertown Square Event of Default has occurred with respect to
the Sangertown Square Master Servicer or the Sangertown Square Special Servicer
under the Sangertown Square Servicing Agreement and remains unremedied, then the
Trustee may, if materially and adversely affected in its capacity as holder of
the Sangertown Square Trust Mortgage Loan or any Sangertown Square REO Trust
Mortgage
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Loan, to the fullest extent permitted by the Sangertown Square Servicing
Agreement, either (i) waive such Sangertown Square Event of Default (but only if
directed to do so in accordance with Section 7.03), or (ii) direct the
Sangertown Square Trustee, as applicable in accordance with the Sangertown
Square Servicing Agreement, to require the appointment of a sub-servicer to
perform the duties of the defaulting Sangertown Square Servicer with respect to
the Sangertown Square Loan Pair or, alternatively, to terminate the defaulting
Sangertown Square Servicer and appoint a successor thereto with respect to the
Sangertown Square Loan Pair. 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
Sangertown Square Trust Mortgage Loan or any Sangertown Square 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 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. 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 to the following paragraph), 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 of the Rating Agencies, such
succession will not result in an Adverse Rating Event, 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 Holders of
Certificates evidencing a majority of the Voting Rights
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allocated to the Controlling Class 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 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 limiting the use of funds received in respect of the XX
Xxxx Loan Group to matters related thereto; 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.
Notwithstanding anything to the contrary set forth in this Agreement,
in the event the Trustee intends to appoint a CIGNA Entity 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), then, prior to the date of effectiveness of any such replacement of the
Special Servicer with a CIGNA Entity (as applicable), (i) this Agreement shall
be amended, in accordance with Section 11.01, at the expense of such CIGNA
Entity (unless there are no other willing and eligible successors, in which case
such expenses shall be an expense of the Trust Fund payable out of the
Collection Account), to provide for a Special Servicer with respect to the 000
Xxxx 00xx Xxxxxx Mortgage Loan and a separate Special Servicer with respect to
the other Serviced Mortgage Loans and any REO Properties, and (ii) a separate
Special Servicer (other than a CIGNA Entity) shall be appointed in accordance
with this Agreement (as amended in accordance with clause (i) above) with
respect to the 000 Xxxx 00xx Xxxxxx Mortgage Loan. Further, no appointment of a
CIGNA Entity as a successor to the Special Servicer hereunder shall be effective
until (i) the assumption by a separate successor Special Servicer (other than a
CIGNA Entity) with respect to the 000 Xxxx 00xx Xxxxxx Mortgage Loan of all its
responsibilities, duties and liabilities under this Agreement (as amended) as
Special Servicer with respect such Mortgage Loan, and (ii) each of the Rating
Agencies has confirmed in writing that such appointment will not result in an
Adverse Rating Event with respect to any Class of Certificates (such Rating
Agency confirmation to be an expense of such CIGNA Entity or the Trust Fund, as
provided above in this paragraph).
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
XX Xxxx Non-Trust Mortgage Loan Noteholder.
(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 a Sangertown
Square 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.
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SECTION 7.04. Waiver of Events of Default and Sangertown Square 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 Sangertown Square Event of Default under the Sangertown Square
Servicing Agreement may waive such Event of Default or, to the extent it is
permitted to do so under the Sangertown Square Servicing Agreement, such
Sangertown Square 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 Sangertown Square 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 a Sangertown Square Event of Default, such
Event of Default or, to the extent it is permitted to do so under the Sangertown
Square Servicing Agreement, such Sangertown Square Event of Default, as the case
may be, shall cease to exist and shall be deemed to have been remedied for every
purpose hereunder. No such waiver shall extend to any subsequent or other Event
of Default or Sangertown Square 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 Sangertown Square 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 an Event of Default
or a Sangertown Square Event of Default.
During the continuance of any Event of Default or Sangertown Square
Event of Default, so long as such Event of Default or Sangertown Square Event of
Default, as the case may be, 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 XX Xxxx
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 XX Xxxx 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 Sangertown
Square 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
Sangertown Square Event of Default and after the curing or waiver of all Events
of Default and Sangertown Square 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 Sangertown Square 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
Sangertown Square Event of Default, and after the curing of all such Events
of Default and Sangertown Square 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;
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(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 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 Sangertown Square Trust Mortgage Loan or any Sangertown Square REO
Trust Mortgage Loan, under the Sangertown Square Co-Lender and Servicing
Agreement or the Series 2000-C3 Pooling and 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 Sangertown
Square 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
Sangertown Square Event of Default hereunder and after the curing of all
Events of Default and Sangertown Square 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 the 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 the Fiscal Agent, and neither the
Trustee nor the Fiscal Agent shall assume any responsibility for their
correctness. Except as expressly set forth in Section 8.16 and 8.18, the Trustee
and the 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 the 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 the 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, the Fiscal Agent or any agent of the Trustee and the
Fiscal Agent, in its individual or any other capacity, may become the owner or
pledgee of Certificates with (except as
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otherwise provided in the definition of "Certificateholder") the same rights it
would have if it were not the Trustee, the Fiscal Agent or such agent.
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 and, if applicable, the XX Xxxx Non-Trust Mortgage Loan Noteholders out of
the Pool Custodial Account, the Collection Account and, to the extent that the
XX Xxxx Loan Group is affected, the XX Xxxx 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, 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, 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 each XX Xxxx
Non-Trust Mortgage Loan Noteholder. 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 each XX Xxxx Non-Trust Mortgage Loan Noteholder 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 any time the Trustee shall
become incapable of acting, or shall be adjudged bankrupt or insolvent, or a
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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 each XX Xxxx
Non-Trust Mortgage Loan Noteholder 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 each XX Xxxx Non-Trust Mortgage Loan Noteholder 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
that effected the removal, if the Trustee has been removed in accordance with
Section 8.07(c) without
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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 each XX Xxxx Non-Trust Mortgage Loan
Noteholder.
SECTION 8.09. Merger or Consolidation of Trustee and Fiscal Agent.
Any entity into which the Trustee or the Fiscal Agent may be merged or
converted, or with which the Trustee or the Fiscal Agent may be consolidated, or
any entity resulting from any merger, conversion or consolidation to which the
Trustee or the 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 the 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 acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer or the
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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)
does not permit the Custodian any rights of indemnification that may be
satisfied out of assets of the Trust Fund. The appointment of one or more
Custodians shall not relieve the Trustee from any of its obligations hereunder,
and the Trustee shall remain responsible 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
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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.
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 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
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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, access to any documentation regarding the Trust Mortgage
Loans within its control that may be required to be provided by this Agreement
or by applicable law. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Trustee designated by it.
(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 XX Xxxx
Non-Trust Mortgage Loan Noteholders and their respective designees,
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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, the Series 2000-C3 Pooling and
Servicing Agreement 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 the 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) and Section 6.11A(a); (xi) the Schedule of
Exceptions to Mortgage File Delivery prepared by the Trustee pursuant to Section
2.02(a); (xii) any exception report prepared by the Trustee pursuant to Section
2.02(b); (xiii) all notices of a breach of representation and warranty given by
or received by the Trustee with respect to any party hereto; (xiv) 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 (xv) any and all
reports, statements and other written or electronic information relating to the
Sangertown Square Trust Mortgage Loan, the Sangertown Square Mortgaged Property
and/or the borrower under the Sangertown Square Trust Mortgage Loan, to the
extent such items were received by the Master Servicer from the Sangertown
Square Master Servicer or the Sangertown Square 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 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.
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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 2003 (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, all Servicer Reports and
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;
(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
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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 Servicer Reports and 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 2003 (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 and/or Servicer Reports 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 Sangertown Square
REO Property, any interest therein), which acquisition or disposition has
not otherwise been reflected in the Distribution Date Statements and/or
Servicer Reports 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 Sangertown Square
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 and/or Servicer Reports 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 the 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 2003), 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 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 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
Sangertown Square Trust Mortgage Loan or any Sangertown Square REO Property, to
the extent required in accordance with the penultimate paragraph of Exhibit Q).
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
Sangertown Square Trust Mortgage Loan (if then specially serviced under the
Sangertown Square Servicing Agreement) or any Sangertown Square REO Property if
the Special Servicer is, is an Affiliate of, or receives a comparable
certification relating thereto from, the Sangertown Square Special Servicer).
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) 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 2003, 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
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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 XX Xxxx 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 XX Xxxx 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.
(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
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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.
(ix) The Trustee is one of the following: (a) either (i) a
banking association that (A) has total assets (in name or under management)
in excess of $600,000,000 and (except with respect to a pension advisory
firm or similar fiduciary) capital surplus, statutory surplus or
shareholder's equity of at least $200,000,000, and (B) is regularly engaged
in the business of making or owning commercial loans, or (ii) a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities
Act of 1933, as amended, that (A) has total assets in excess of
$600,000,000 and capital surplus, statutory surplus or shareholders' equity
of at least $200,000,000 and (B) is regularly engaged in the business of
making or owning loans of similar types to the Mortgage Loans; or (b) an
entity controlled by an entity described in clause (a)(i) above. For
purposes of this definition only, "control" means the ownership, directly
or indirectly, in the aggregate of more than 50% of the beneficial
ownership interests of an entity and the possession, directly or
indirectly, of the power to direct or cause the direction of the
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management or policies of such entity, whether through the ability to
exercise voting power, by contract or otherwise. "Controlled" has the
meaning correlative thereto.
(b) 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.
(c) 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. The Fiscal Agent.
(a) The Fiscal Agent shall at all times maintain a long-term unsecured
debt rating of no less than "AA-" from S&P (or "A+" from S&P, if the Fiscal
Agent's short-term unsecured debt rating is at least "A-1" by S&P) and "Aa3"
from Xxxxx'x, or, in the case of either Rating Agency, such other rating as
shall not result in an Adverse Rating Event, as confirmed in writing by such
Rating Agency.
(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, the
Fiscal Agent shall make such Advance when and as required by the terms of this
Agreement on behalf the Trustee as if the Fiscal Agent were the Trustee
hereunder. To the extent that the Fiscal Agent makes an Advance pursuant to this
Section 8.17(b) or otherwise pursuant to this Agreement, the obligations of the
Trustee under this Agreement in respect of such Advance shall be satisfied.
Notwithstanding anything contained in this Agreement to the contrary, the Fiscal
Agent shall be entitled to all limitations on liability, rights of reimbursement
and indemnities that the Trustee is entitled to hereunder as if it were the
Trustee.
(c) All fees and expenses of the Fiscal Agent (other than any interest
owed to the Fiscal Agent in respect of unreimbursed Advances) incurred by the
Fiscal Agent in connection with the transactions contemplated by this Agreement
shall be borne by the Trustee, and neither the Trustee nor the Fiscal Agent
shall be entitled to reimbursement therefor from any of the Trust Fund, the
Depositor, the Master Servicer or the Special Servicer.
(d) The obligations of the 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 (or, in the case of the initial Fiscal Agent, so long
as the initial Trustee) shall act as Trustee hereunder. The 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 the Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it (or, in the case of
the initial Fiscal Agent, at such time as the initial Trustee) resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent shall belong to the successor Trustee, and which
appointment the successor Trustee shall use its best efforts to make,
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insofar as such appointment is necessary for such successor Trustee to satisfy
the eligibility requirements of Section 8.06). Any successor fiscal agent so
appointed shall be required to execute and deliver to the other parties hereto a
written agreement to assume and perform the duties of the Fiscal Agent set forth
in this Agreement; provided that no such successor shall become Fiscal Agent
hereunder unless either (i) it satisfies the rating requirements of Section
8.17(a) or (ii) the Trustee shall have received written confirmation from each
Rating Agency that the succession of such proposed successor fiscal agent would
not, in and of itself, result in an Adverse Rating Event.
(e) The Trustee shall promptly notify the other parties hereto, the
Certificateholders and each XX Xxxx Non-Trust Mortgage Loan Noteholder in
writing of the appointment, resignation or removal of any Fiscal Agent.
SECTION 8.18. Representations and Warranties of Fiscal Agent.
(a) The Fiscal Agent hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders and the XX
Xxxx Non-Trust Mortgage Loan Noteholders, as of the Closing Date, that:
(i) The Fiscal Agent is a banking association duly organized,
validly existing and in good standing under the laws of the Netherlands.
(ii) The execution and delivery of this Agreement by the Fiscal
Agent, and the performance and compliance with the terms of this Agreement
by the Fiscal Agent, will not violate the Fiscal Agent's organizational
documents or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in a
material breach of, any material agreement or other instrument to which it
is a party or by which it is bound.
(iii) The Fiscal Agent has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Fiscal Agent, enforceable against the Fiscal
Agent in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
the enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Fiscal Agent is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Fiscal Agent's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the Fiscal
Agent to perform its obligations under this Agreement or the financial
condition of the Fiscal Agent.
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(vi) No litigation is pending or, to the best of the Fiscal
Agent's knowledge, threatened against the Fiscal Agent that, if determined
adversely to the Fiscal Agent, would prohibit the Fiscal Agent from
entering into this Agreement or, in the Fiscal Agent's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Fiscal Agent to perform its obligations under this
Agreement or the financial condition of the Fiscal Agent.
(vii) Any consent, approval, authorization or order of any court
or governmental agency or body required for the execution, delivery and
performance by the Fiscal Agent of or compliance by the Fiscal Agent 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 Fiscal Agent under this Agreement.
(b) The representations and warranties of the Fiscal Agent set forth
in Section 8.18(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 given prompt written notice thereof to the
other parties hereto.
(c) Any successor Fiscal Agent shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 8.18(a) subject to such appropriate modifications to the representations
and warranties set forth in Section 8.18(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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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Trust
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective obligations
and responsibilities under this Agreement of the Depositor, the Master Servicer,
the Special Servicer, the 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 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), and (B) 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, the
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 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
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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 XX Xxxx REO Property 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 XX Xxxx 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, the Master Servicer shall transfer to the Collection Account all
amounts required to be transferred thereto on such 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. Any transfer of Trust Mortgage Loans pursuant to this
paragraph, except in the case of the Sangertown Square Trust Mortgage Loan,
shall be on a servicing-released basis; and, if any Trust Mortgage Loan
purchased pursuant to this Section 9.01 is a XX Xxxx 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.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and the XX Xxxx 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
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Available Distribution Amount for the Final Distribution Date, shall be
allocated in the following order of priority, in each case to the extent of
remaining available funds:
(i) to 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 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 distributions of principal to the Holders of the
respective Classes of 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 distributions to the Holders of the respective Classes
of Class A Certificates, up to an amount equal to, pro rata in accordance
with, and in reimbursement of, the Loss Reimbursement Amount with respect
to each such Class of Certificates for the Final Distribution Date;
(iv) to 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 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 distributions to the Holders of the Class B Certificates,
up to an amount equal to, and in reimbursement of, the Loss Reimbursement
Amount with respect to the Class B Certificates for the Final Distribution
Date;
(vii) to 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 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 distributions to the Holders of the Class C Certificates,
up to an amount equal to, and in reimbursement of, the Loss Reimbursement
Amount with respect to the Class C Certificates for the Final Distribution
Date;
(x) to 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;
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(xi) to 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;
(xii) to distributions to the Holders of the Class D
Certificates, up to an amount equal to, and in reimbursement of, the Loss
Reimbursement Amount with respect to the Class D Certificates for the Final
Distribution Date;
(xiii) to 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 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 distributions to the Holders of the Class E Certificates,
up to an amount equal to, and in reimbursement of, the Loss Reimbursement
Amount with respect to the Class E Certificates for the Final Distribution
Date;
(xvi) to 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 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 distributions to the Holders of the Class F
Certificates, up to an amount equal to, and in reimbursement of, the Loss
Reimbursement Amount with respect to the Class F Certificates for the Final
Distribution Date;
(xix) to 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 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 distributions to the Holders of the Class G
Certificates, up to an amount equal to, and in reimbursement of, the Loss
Reimbursement Amount with respect to the Class G Certificates for the Final
Distribution Date;
(xxii) to 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 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 distributions to the Holders of the Class H
Certificates, up to an amount equal to, and in reimbursement of, the Loss
Reimbursement Amount with respect to the Class H Certificates for the Final
Distribution Date;
(xxv) to 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 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 distributions to the Holders of the Class J
Certificates, up to an amount equal to, and in reimbursement of, the Loss
Reimbursement Amount with respect to the Class J Certificates for the Final
Distribution Date;
(xxviii) to 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 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 distributions to the Holders of the Class K
Certificates, up to an amount equal to, and in reimbursement of, the Loss
Reimbursement Amount with respect to the Class K Certificates for the Final
Distribution Date;
(xxxi) to 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 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 distributions to the Holders of the Class L
Certificates, up to an amount equal to, and in reimbursement of, the Loss
Reimbursement Amount with respect to the Class L Certificates for the Final
Distribution Date;
(xxxiv) to 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;
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(xxxv) to 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 distributions to the Holders of the Class M
Certificates, up to an amount equal to, and in reimbursement of, the Loss
Reimbursement Amount with respect to the Class M Certificates for the Final
Distribution Date;
(xxxvii) to 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 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 distributions to the Holders of the Class N
Certificates, up to an amount equal to, and in reimbursement of, the Loss
Reimbursement Amount with respect to the Class N Certificates for the Final
Distribution Date;
(xl) to 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 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 distributions to the Holders of the Class P
Certificates, up to an amount equal to, and in reimbursement of, the Loss
Reimbursement Amount with respect to the Class P Certificates for the Final
Distribution Date;
(xliii) to 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;
(xliv) to 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;
(xlv) to distributions to the Holders of the Class Q
Certificates, up to an amount equal to, and in reimbursement of, the Loss
Reimbursement Amount with respect to the Class Q Certificates for the Final
Distribution Date;
(xlvi) to 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;
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(xlvii) to 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 distributions to the Holders of the Class S
Certificates, up to an amount equal to, and in reimbursement of, the Loss
Reimbursement Amount with respect to the Class S Certificates for the Final
Distribution Date;
(xlix) to 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 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 distributions to the Holders of the Class T Certificates,
up to an amount equal to, and in reimbursement of, the Loss Reimbursement
Amount with respect to the Class T Certificates for the Final Distribution
Date;
(lii) to 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 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);
(liv) to make distributions to the Holders of the Class R-LR
Certificates, up to an amount equal to the excess, if any, of (A) that
portion of the Available Distribution Amount for such Distribution Date
that is allocable to the Sangertown Square Trust Mortgage Loan and/or any
Sangertown Square REO Trust Mortgage Loan, over (B) the aggregate
distributions (other than distributions of Net Prepayment Consideration)
deemed made in respect of the Loan REMIC Regular Interests on such
Distribution Date pursuant to Section 4.01(l); and
(lv) to 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 (liv) above.
All distributions of interest made in respect of a Class of Interest
Only Certificates on the Final Distribution Date pursuant to clause (i) of the
preceding paragraph, shall be deemed to have been
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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 the Sangertown Square Loan REMIC to REMIC I on the various Loan REMIC
Regular Interests in accordance with Section 4.01(l) (to the extent of the funds
so distributed that were received by or on behalf of the Trust with respect to
the Sangertown Square Trust Mortgage Loan or any Sangertown Square REO Trust
Mortgage Loan), then 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
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the Person effecting such purchase obtains at its own expense and delivers to
the Trustee and the Tax 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 and the Sangertown Square Loan REMIC 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.
The foregoing requirements of this Section 9.02 shall also apply,
mutatis mutandis, to the repurchase of the Sangertown Square Trust Mortgage Loan
or any Sangertown Square REO Trust Mortgage Loan, pursuant to Section 2.03, and
liquidation of the Sangertown Square Loan REMIC.
(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. Sangertown Square Trust Mortgage Loan.
References to "REO Property" and "REO Properties" in Sections 9.01 and
9.02 shall be deemed to include the Trust's rights with respect to any REO
Property relating to the Sangertown Square Trust Mortgage Loan and such rights
shall be taken into account in calculating the Purchase Price.
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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 Loan REMIC Regular Interests, the REMIC I Regular Interests,
the REMIC II Regular Interests and the Regular Interest Certificates (or, in the
case of the Class X-CP and Class X-CL Certificates, each of the REMIC III
Components of each such Class) are hereby designated as "regular interests"
(within the meaning of Section 860G(a)(1) of the Code) in the Sangertown Square
Loan REMIC, REMIC I, REMIC II and REMIC III, respectively. The Class R-LR
Certificates, 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 the
Sangertown Square Loan REMIC, 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 the
Sangertown Square Loan REMIC, 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 Loan REMIC Regular Interest, 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-CP and Class X-CL
Certificates, each REMIC III Component of each 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
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reimbursable to the Tax Administrator from the Trust Fund (exclusive of the
Grantor Trusts Assets), unless otherwise provided in Section 10.01(i) or
10.01(j)).
(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
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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 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 or the Sangertown Square Loan REMIC, as applicable,
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
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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 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 Grantor Trust, for tax
return preparation purposes, as a grantor trust 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 Trust (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
Grantor Trust Assets in the Trust Fund 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
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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 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 Trust
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 Grantor Trust 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 Trust 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 Trust, 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 the Grantor Trust, 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 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 the XX Xxxx 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 Trust 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 Trust; (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); (ix)
to amend any provision of this Agreement to provide for a separate Special
Servicer with respect to the 000 Xxxx 00xx Xxxxxx Mortgage Loan as contemplated
by Sections 6.04, 6.09 and/or 7.02; or (x) 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), (viii) and (ix) above) shall not adversely affect in any
material respect the interests of any Certificateholder or XX Xxxx 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; and provided,
further, that such amendment shall not significantly change the activities of
the Trust (insofar as such change would adversely affect the status of the Trust
as a "qualifying special-purpose entity" under FASB 140).
(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 Trust Mortgage Loans and/or Serviced
Non-Trust Mortgage Loans which are required to be distributed on any
Certificate,
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without the consent of the Holder of such Certificate, or which are required to
be distributed to any XX Xxxx Non-Trust Mortgage Loan Noteholder, without the
consent of such XX Xxxx 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 XX Xxxx Non-Trust Mortgage Loan Noteholder
in a manner other than as described in the immediately preceding clause (i),
without the consent of the Holders of all Certificates of such Class or the
consent of such XX Xxxx Non-Trust Mortgage Loan Noteholder, as the case may be,
(iii) significantly change the activities of the Trust (insofar as such change
would adversely affect the status of the Trust as a "qualifying special-purpose
entity" under FASB 140) without the consent of the Holders of Certificates
entitled to 51% of all the Voting Rights (without regard to Certificates held by
the Depositor or any of the Depositor's Affiliates and/or agents), (iv) modify
the provisions of this Section 11.01, without the consent of the Holders of all
Certificates then outstanding and the consent of the XX Xxxx Non-Trust Mortgage
Loan Noteholders, (v) 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 the XX Xxxx Non-Trust Mortgage
Loan Noteholders, or (vi) 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 the Grantor Trust to fail to qualify as a grantor
trust within the meaning of the Grantor Trust Provisions 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 XX Xxxx 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.
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(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 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).
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 XX Xxxx 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 XX Xxxx Non-Trust Mortgage Loan Noteholders, out
of the XX Xxxx Custodial Account pursuant to Section 3.05A), to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders and/or the XX Xxxx 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 and the XX
Xxxx Non-Trust Mortgage Loan Noteholders.
(a) The death or incapacity of any Certificateholder or XX Xxxx
Non-Trust Mortgage Loan Noteholder shall not operate to terminate this Agreement
or the Trust Fund, nor entitle such Certificateholder's or XX Xxxx Non-Trust
Mortgage Loan Noteholder'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 or XX Xxxx Non-Trust Mortgage Loan Noteholder
(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 and/or XX Xxxx Non-Trust Mortgage Loan Noteholders from time
to time as partners or members of an association; nor shall any
Certificateholder or XX Xxxx Non-Trust Mortgage Loan Noteholder 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.
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(c) No Certificateholder or XX Xxxx Non-Trust Mortgage Loan Noteholder
shall have any right by virtue of any provision of this Agreement to institute
any suit, action or proceeding in equity or at law upon or under or with respect
to this Agreement or any Trust Mortgage Loan, unless, with respect to any suit,
action or proceeding upon or under or with respect to this Agreement, such
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 or the XX Xxxx
Non-Trust Mortgage Loan Noteholders shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
section, each and every Certificateholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 11.04. Governing Law; 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 the 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 2003-C8, facsimile
number: (000) 000-0000; (ii) in the case of the Master Servicer, Wachovia Bank,
National Association, 0000 Xxxxxxxx Xxxxx, XXX0, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000, Attention: LB-UBS Mortgage Trust 2003-C8; facsimile number: (704)
593-7735; (iii) in the case of the Special Servicer, Lennar Partners, Inc., 0000
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxx
Xxxxxxx--LB-UBS Commercial Mortgage Trust 2003-C8, facsimile number: (305)
695-5500; (iv) in the case of the Trustee, LaSalle Bank National Association,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
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Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed Securities Trust Services
Group--LB-UBS Commercial Mortgage Trust 2003-C8, facsimile number: (312)
904-2084; (v) in the case of the Fiscal Agent, ABN AMRO Bank N.V., 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed
Securities Trust Services Group--LB-UBS Commercial Mortgage Trust 2003-C8,
facsimile number: (000) 000-0000; (vi) 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 2003-C8, facsimile number: (646)
758-4203, 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; and (vii) 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: (212)
438-2662; or, as to each such Person, such other address as may hereafter be
furnished by such Person to the parties hereto in writing. Any communication
required or permitted to be delivered to a Certificateholder shall be deemed to
have been duly given when mailed first class, postage prepaid, to the address of
such Holder as shown in the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Grant of a Security Interest.
The Depositor and the Trustee agree that it is their intent that the
conveyance of the Depositor's right, title and interest in and to the Trust
Mortgage Loans pursuant to this Agreement shall constitute a sale and not a
pledge of security for a loan. If such conveyance is deemed to be a pledge of
security for a loan, however, the Depositor 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 XX Xxxx 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
-299-
or cause to be filed, as a precautionary filing, a Form UCC-1 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 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 Sangertown
Square Master Servicer shall be a third-party beneficiary to this Agreement with
respect to its rights as specifically provided for herein and under the
Sangertown Square Co-Lender and Servicing 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.
-300-
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 Sangertown Square
Event of Default that has not been cured;
(iii) the resignation or termination of the 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 Trust 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
-301-
(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) Each of the Trustee, the Master Servicer and the Special Servicer
shall provide to each Rating Agency such other information with respect to the
Trust Mortgage Loans and the Certificates, to the extent such party possesses
such information, as such Rating Agency shall reasonably request.
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.
-302-
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: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
Master Servicer
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
LENNAR PARTNERS, INC.
Special Servicer
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
Trustee
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: First Vice President
ABN AMRO BANK N.V.
Fiscal Agent
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: First Vice President
By: /s/ Xxxxxxx Xxxx
----------------------------------------
Name: Xxxxxxx Xxxx
Title: Senior Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 21 day of November, 2003, before me, a notary public in and for
said State, personally appeared Xxxxx Xxxx, known to me to be a 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]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBERG )
On the 20 day of November, 2003, before me, a notary public in and for
said State, personally appeared Xxxxx Xxxxx, known to me to be a Vice President
of WACHOVIA BANK, NATIONAL ASSOCIATION, one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx X. Xxxxxxxx
--------------------------------------------------
Notary Public
[Notarial Seal]
STATE OF FLORIDA )
) ss.:
COUNTY OF MIAMI-DADE )
On the 24 day of November, 2003, before me, a notary public in and for
said State, personally appeared Xxxxxx X. Xxxxx, known to me to be a Vice
President of LENNAR PARTNERS, INC., one of the entities that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entity, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------------
Notary Public
[Notarial Seal]
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 25 day of November, 2003, before me, a notary public in and for
said State, personally appeared Xxxxxxx X. Xxxxx, known to me to be a First Vice
President of LASALLE BANK NATIONAL ASSOCIATION, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of 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 Xxxxxxxx
--------------------------------------------------
Notary Public
[Notarial Seal]
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 25 day of November, 2003, before me, a notary public in and for
said State, personally appeared Xxxxxxx X. Xxxxx and Xxxxxxx Xxxx, known to
me to be a First Vice President and Senior Vice President, respectively, of ABN
AMRO BANK N.V., one of the entities that executed the within instrument, and
also known to me to be the persons 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 Xxxxxxxx
--------------------------------------------------
Notary Public
[Notarial Seal]
SCHEDULE I
TRUST MORTGAGE LOAN SCHEDULE
Property Name Address
----------------------------------------------- ----------------------------------------------
The Grove 000 Xxxxx Xxxxx
000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx
GGP JP Realty Portfolio Xxxxxxx
Xxxxxxxxx Xxxxxxxxxxxx Xxxxx Xxxxxx 00 Xxxxx Xxxxxx Xxxxxxxxx
Dartmouth Mall 000 Xxxxxxxxx Xxxx
00 Xxxxx Xxxxxx 30 Broad Street
Oakwood Dulles 00000 Xxxxxxxxx Xxxx Xxxxx
The Plaza at Delray 0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxx Tree Mall 000 Xxxxxxxxxxxx Xxx
Xxxxxxxxx Hotel Portfolio Various
00 Xxxx 000xx Xxxxxx 55 West 125th Street
Oakwood Grand Venetian 0000 Xxxx Xxxxx
Xxxxx Tower 0000 Xxxxxx Xxxxxx
Centre at Westbank 1601 Westbank Expressway
Xxxxx Hill Apartments 0000 X. Xxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxxx Shopping Center 0000 Xxxxxxx Xxxxxxxxx
Xxxxx Xxxx Center 0000 Xxxxxxx 0 & 00
Xxxxxxx Xxxxx Shopping Center Richmond Highway & Lorton Road
Malibu Bella Mar Apartments 6487-6489 Cavalleri Road
One Sound Shore Drive One Sound Shore Drive
Clinton Apartments 000 Xxxx 00xx Xxxxxx & 000 Xxxx 00xx Xxxxxx
Xxxx Xxxx 000 Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx Square Mall Route 5 and Xxxxx 0X
Xxxxxxx Xxxxx 0000 Xxxx 00xx Xxxxxx
Xxxxx of Green Run Apartments 0000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx Xxxxx 0000-0000 Xxxxx 00
0000 Xxxxxxxxx Xxxxxxxxx 0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxx Xxxx 47 & 00 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx 0000-0000 Santa Fe Avenue
The Chateau Office 20501 Ventura Boulevard
Federal Express Building 0000 Xxxxxxxx Xxxx
Xxxxxxxx Corporate Center 16301 Quorum Drive
Xxxxxx Xxxx Plaza SWC Mechanicsville Turnpike and Xxx Xxxxx Road
Spectrum Office Building 0000 Xxxxxxxxxx Xxxx
Xxx Xxxxxx Shopping Center 0000 Xxxxx Xxxx Xxxx
Xxxxxxxxx Xxxxx Xxxxx XX 000 Xxxxx Xxxxx
Xxxx 00xx - Davenport East 53rd Street and Xxxxxx Avenue
Property Name City State Zip Code
----------------------------------------------- --------------- ------- --------
The Grove Xxx Xxxxxxx XX 00000
000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
GGP JP Realty Portfolio Various Various Various
Xxxxxxxxx Xxxxxxxxxxxx Xxxxx Xxxxxx Xx. Xxxxx XX 00000
Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000
00 Xxxxx Xxxxxx Xxx Xxxx XX 00000
Oakwood Dulles Xxxxxxx XX 00000
Xxx Xxxxx xx Xxxxxx Xxxxxx Xxxxx XX 00000
Xxxxxxx Xxxx Xxxx Xxxxxxx XX 00000
Milestone Hotel Portfolio Various Various Various
00 Xxxx 000xx Xxxxxx Xxx Xxxx XX 00000
Oakwood Grand Venetian Xxxxxx XX 00000
Xxxxx Tower Xxxxxxx XX 00000
Centre at Westbank Harvey LA 00000
Xxxxx Xxxx Xxxxxxxxxx Xxxxxxxxx XX 00000
Oceanview Xxxxxxx Xxxxxxxx Xxxxxx Xxx Xxxxxxxxx XX 00000
Grand Mesa Center Grand Junction CO 00000
Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx Xxxxxx XX 00000
Malibu Xxxxx Xxx Xxxxxxxxxx Xxxxxx XX 00000
Xxx Xxxxx Xxxxx Xxxxx Xxxxxxxxx XX 00000
Xxxxxxx Xxxxxxxxxx Xxx Xxxx XX 00000
Polo Park Nashville TN 37214
Xxxxxxxxxx Xxxxxx Xxxx Xxx Xxxxxxxx XX 00000
Xxxxxxx Xxxxx Xxxxxxx XX 00000
Pines of Green Run Apartments Virginia Beach VA 00000
Xxxxxxxxx Xxxxx Xxxxxxxxxxxx XX 00000
0000 Xxxxxxxxx Xxxxxxxxx Xxx Xxxx XX 00000
Loveton Business Park Sparks MD 00000
Xxxxxxxxx Xxxxx Xxxxxxxxxx Xxxx XX 00000
The Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx XX 00000
Federal Express Building Union NJ 07083
Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxx XX 00000
Xxxxxx Xxxx Xxxxx Xxxxxxxxxxxxxx XX 00000
Spectrum Xxxxxx Xxxxxxxx Xxxxxxx XX 00000
San Xxxxxx Shopping Center Houston TX 77057
Newpointe Plaza Phase II Clarksburg WV 00000
Xxxx 00xx - Xxxxxxxxx Xxxxxxxxx XX 00000
Property Name Address
----------------------------------------------- ----------------------------------------------------
PGA Commons 0000-0000 XXX Xxxxxxxxx
00 Xxxxxx X 00 Xxxxxx X
Xxxx Xxxxxxx - Xxxxx Tree 00000 Xxxxx Xxxx Xxxxxxxxx
Post and Paddock 0000 Xxxx Xxxxx Xxxxxxx Xxxxxx
Canyon Plaza North 67740 East Palm Canyon Drive
Park Villa Apartments 00 Xxxxxx Xxxxxx
Xxxxxxxx Shopping Center 00000 Xxxxxxxxxx Xxxx
0-00 Xxxxx Xxxxxxxx 0-00 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx and Watsessing Avenue
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx 0000-0000 Bunker Lake Boulevard
Maverick/Hidden Village Apartments 221 and 000 Xxxxx Xxxxx Xxxxxx and 0000 Xxxxx Xxxxxx
Sunchase Olympiad 000 Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx Center Northeast Corner Loop 101 and Camelback Road
The Shoppes of Xxxxx Road Various
Rock Road Center 0000 Xxxxx Xxxx Xxxx
Beltway Crossing 0000 Xxxxxxx Xxxxxxx
Silverado Self Storage 0000 Xxxxxxx Xxxxxx
00000 Xxxxxxxxx Xxxxx 00000 Xxxxxxxxx Xxxxx
0000 Xxxxxxx Xxxxxxx 0000 Xxxxxxx Xxxxxxx
Xxxxxxxxxx Suites by Marriott - Boca Raton 0000 XX 0xx Xxxxxx
000 Xxxxxxxx Xxxxxxxxx 707-711 Foothill Boulevard
TownePlace Suites by Marriott - Boca Raton 0000 XX 0xx Xxxxxx
Centerpoint Shopping Center 0000 Xxxx Xxxx Xxxxx
380 Xxxxxxx Apartments 000 Xxxxxxx Xxxxx
Xxxxxxxx Building 3812 Xxxxxxxxx Boulevard
Plaza Medical & Research Center 13090 North 94th Drive
TownePlace Suites by Marriott - Fort Lauderdale 3100 Prospect Road
Montagnet Various
Xxx Xxxxx Xxxxxxx 0000 Xxxxxxxx Xxxxxxx
Xxxxxx Corners Apartments 100-102 and 000-000 Xxxx Xxxxxx
2101 K Street 2101 K Street
The Harkins Office Building 00000 Xxx Xxxxxxxx Xxxx
Xxxxxxx Retail Plaza 00000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxxxxx 00000 North Saguaro Boulevard
Skillman Xxxxx Crossing 0000 Xxxxxx Xxxx
The Xxxxxxxx 663 - 000 Xxxxxxx Xxxxxx
Xxxxxx Xxxxxx 000-000 Xxxxxx Xxxxxxxxx Xxxx
Xxx Xxxxxxxx Xxxxxx 000-000 Xxx Xxxxx
AAA Self Storage 00000 Xxxxxxx 000 Xxxx
Summergate Shopping Center 0000-0000 Xxxx Xxxx Xxxx Xxxxxxxxx
Hyacinth Square Apartments 0000 Xxxxxxxx Xxxxxx XX
Xxxx Xxxxxx Xxxx 00000 West Little York
0000 Xxxxx Xxxxx 0000 Xxxxx Drive
Property Name City State Zip Code
----------------------------------------------- ------------------ ----- --------
XXX Xxxxxxx Xxxx Xxxxx Xxxxxxx XX 00000
00 Xxxxxx X Xxx Xxxx XX 00000
Best Western - Green Tree Xxxxxxxxxxx XX 00000
Post and Paddock Xxxxx Xxxxxxx XX 00000
Canyon Plaza North Cathedral City CA 00000
Xxxx Xxxxx Xxxxxxxxxx Xxxxxxxx XX 00000
Xxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxx XX 00000
0-00 Xxxxx Xxxxxxxx Xxxxx Xxxxxx XX 00000
Xxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxx XX 00000
Andover Station Andover MN 00000
Xxxxxxxx/Xxxxxx Xxxxxxx Xxxxxxxxxx Xxx Xxxxx XX 00000
Sunchase Olympiad Montgomery AL 00000
Xxxx Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000
The Shoppes of Xxxxx Road Coral Springs FL 00000
Xxxx Xxxx Xxxxxx Xxxxxxx XX 00000
Beltway Crossing Glen Burnie MD 21060
Silverado Self Storage Xxx Xxxxx XX 00000
00000 Xxxxxxxxx Xxxxx Xxxxxxx Xxxx XX 00000
0000 Xxxxxxx Xxxxxxx Xxxxxx XX 00000
Springhill Suites by Marriott - Boca Raton Xxxx Xxxxx XX 00000
000 Xxxxxxxx Xxxxxxxxx Xx Xxxxxx XX 00000
TownePlace Suites by Marriott - Boca Raton Xxxx Xxxxx XX 00000
Xxxxxxxxxxx Xxxxxxxx Xxxxxx Xxxx XX 00000
000 Xxxxxxx Xxxxxxxxxx Xxxxxxxxx XX 00000
Citibank Xxxxxxxx Xxxxxxxx XX 00000
Xxxxx Xxxxxxx & Xxxxxxxx Xxxxxx Xxxxxx XX 00000
TownePlace Suites by Marriott - Fort Lauderdale Xxxx Xxxxxxxxxx XX 00000
Montagnet Xxxxxxx XX Xxxxxxx
Xxx Xxxxx Xxxxxxx Xxxxxxxxxxxx XX 00000
Xxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxxxxxxxx XX 00000
0000 X Xxxxxx Xxxxxxxxxx XX 00000
The Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxx Xxxxxx XX 00000
Prairie Retail Xxxxx Xxxxxxxx XX 00000
Plaza Fountainside Xxxxxxxx Xxxxx XX 00000
Skillman Xxxxx Xxxxxxxx Xxxxxx XX 00000
The Xxxxxxxx Xxxxx Xxxxx XX 00000
Lithia Square Brandon FL 00000
Xxx Xxxxxxxx Xxxxxx Xxxx XX 00000
AAA Self Storage Xxxxxx XX 00000
Xxxxxxxxxx Xxxxxxxx Xxxxxx Xxx Xxxxx XX 00000
Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxx XX 00000
Xxxx Xxxxxx Xxxx Xxxxxxx XX 00000
0000 Xxxxx Xxxxx Xxxxxx Xxxxxx XX 00000
Property Name Address City State Zip Code
-------------------------------------------- -------------------------------- -------------- ----- --------
Eckerd - Morganton 000 Xxxx Xxxxxxx Xxxxx Xxxxxxxxx XX 00000
East Wenatchee Storage 000 Xxxx Xxxxxx Xxxx Xxxx Xxxxxxxxx XX 00000
Gulfport Plaza 0000 Xxxxxxx 00 Xxxxxxxx XX 00000
00 Xxxx Xxxxxx and 000-000 Xxxxxxxxxx Xxxxxx Xxxxxxx Xxxxxxx XX Various
IBP Retail Strip 0000 Xxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
Parliament Place 000 Xxxxxxxxxxx Xxxx Xxxxxxxxx XX 00000
Xxxxxx Xxxxx Apartments 0000 XX 000 Xxxx Xxxxxxxxx XX 00000
IBP KFC & Whataburger 3420 & 0000 Xxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
CompUSA 0000 Xxxxxxx Xxxxx Xxxxxx XX 00000
Charger Square 0000 Xxxx Xxxxxxxx Xxxxxxx Xxxxxxxx XX 00000
Bottlebrush Apartments 0000 Xxxxxxxxxxx Xxxxx Xxxxxxxxx Xxxx Xxx XX 00000
Gulf Breeze Mobile Home Park 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
IBP KFC 000 Xxxx Xxxx Xxxxx XX 00000
Remaining
Monthly P&I Mortgage term to Remaining
Property Name Cut-off Date Balance Payment Rate Maturity Maturity Amortization Term
--------------------------------------------- -------------------- ----------- -------- --------- ---------- -----------------
The Grove 177,059,667.21 988,995.00 5.3050 115 6/11/2033 355
000 Xxxx 00xx Xxxxxx 114,771,488.53 662,004.86 5.6250 118 3/11/2014 358
GGP JP Realty Portfolio 86,302,105.65 438,534.00 3.5640 56 7/11/2028 000
Xxxxxxxxx Xxxxxxxxxxxx Xxxxx Xxxxxx 85,907,770.66 459,618.95 4.9610 119 10/11/2033 000
Xxxxxxxxx Xxxx 69,601,034.64 373,639.00 4.9500 115 6/11/2013 355
00 Xxxxx Xxxxxx 62,500,000.00 372,712.32 5.9500 60 11/11/2008 360
Oakwood Dulles 44,500,000.00 221,454.46 5.8900 58 9/11/2033 0
The Plaza at Delray 43,250,000.00 182,711.09 5.0000 57 8/11/2008 0
Xxxxxxx Xxxx Xxxx 35,000,000.00 154,364.58 5.2200 119 10/11/2013 0
Milestone Hotel Portfolio 34,995,000.00 280,905.62 6.7800 84 11/11/2010 216
00 Xxxx 000xx Xxxxxx 33,975,055.33 213,786.34 6.4500 119 10/11/2013 359
Oakwood Grand Venetian 33,500,000.00 127,086.75 4.4900 57 8/11/2008 0
Xxxxx Tower 32,101,248.97 180,611.97 5.3900 57 8/11/2008 357
Centre at Westbank 21,261,988.80 126,491.91 5.9200 119 10/11/2013 359
Xxxxx Hill Apartments 21,136,138.04 119,972.54 5.4700 81 8/11/2010 000
Xxxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 19,953,487.34 127,282.95 6.5660 117 8/11/2033 357
Grand Mesa Center 19,937,701.13 111,309.46 5.3200 81 8/11/2010 000
Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx 17,949,239.15 105,157.49 5.7600 117 8/11/2013 357
Malibu Bella Mar Apartments 16,000,000.00 94,492.71 5.8600 120 11/11/2013 000
Xxx Xxxxx Xxxxx Xxxxx 16,000,000.00 95,414.36 5.9500 120 11/11/2013 360
Clinton Apartments 14,937,576.22 89,536.71 5.9900 119 10/11/2013 359
Polo Park 14,500,000.00 73,900.76 4.5500 63 2/11/2009 000
Xxxxxxxxxx Xxxxxx Xxxx 14,133,832.73 96,544.31 8.0846 73 12/1/2029 000
Xxxxxxx Xxxxx 13,725,952.10 84,214.48 6.2000 118 9/11/2013 000
Xxxxx xx Xxxxx Xxx Apartments 12,458,686.56 67,485.20 5.0500 117 8/11/2013 000
Xxxxxxxxx Xxxxx 11,872,994.34 63,881.77 5.0000 118 9/11/2013 358
0000 Xxxxxxxxx Xxxxxxxxx 10,682,287.27 67,209.62 6.4400 118 9/11/2013 000
Xxxxxxx Xxxxxxxx Xxxx 10,570,926.81 62,736.88 5.8800 117 8/11/2013 000
Xxxxxxxxx Xxxxx 9,272,919.30 53,506.69 5.6200 117 8/11/2013 357
The Chateau Office 9,255,622.50 56,432.80 6.1500 119 10/11/2013 359
Federal Express Building 9,142,829.33 56,100.30 6.2100 119 10/11/2033 359
Parkside Corporate Center 9,126,787.16 56,100.30 6.2100 117 8/11/2013 000
Xxxxxx Xxxx Xxxxx 8,905,883.93 51,496.39 5.6206 115 6/11/2013 355
Spectrum Office Building 8,178,744.86 49,797.55 6.1200 117 8/11/2013 357
San Xxxxxx Shopping Center 8,168,519.75 47,177.94 5.6200 176 7/11/2033 000
Xxxxxxxxx Xxxxx Xxxxx II 8,134,787.87 48,392.79 5.9100 118 9/11/2013 000
Xxxx 00xx - Xxxxxxxxx 8,128,824.13 49,441.23 6.1100 117 8/11/2013 000
XXX Xxxxxxx 7,570,755.21 43,677.94 5.6100 116 7/11/2013 000
00 Xxxxxx X 7,525,000.00 44,537.27 5.8800 120 11/11/2013 360
Best Western - Green Tree 7,336,114.15 51,205.25 6.8500 119 10/11/2013 299
Post and Paddock 7,271,384.16 41,586.11 5.5300 116 7/11/2013 356
Interest Accrual Administrative
Property Name Basis Cost Rate
--------------------------------------------- ---------------- --------------
The Grove Act/360 0.0316
000 Xxxx 00xx Xxxxxx Act/360 0.0316
GGP JP Realty Portfolio Act/360 0.0316
Xxxxxxxxx Xxxxxxxxxxxx Xxxxx Xxxxxx Xxx/000 0.0000
Xxxxxxxxx Mall Act/360 0.0316
00 Xxxxx Xxxxxx Xxx/000 0.0000
Xxxxxxx Dulles Act/360 0.0966
The Plaza at Delray Act/360 0.0316
Liberty Tree Mall Act/360 0.0316
Milestone Hotel Portfolio Act/360 0.0316
00 Xxxx 000xx Xxxxxx Act/360 0.0316
Oakwood Grand Venetian Act/360 0.1166
Xxxxx Tower Act/360 0.0316
Centre at Xxxxxxxx Xxx/000 0.0000
Xxxxx Xxxx Apartments Act/360 0.0316
Oceanview Village Shopping Center Act/360 0.0316
Grand Mesa Center Act/360 0.0316
Gunston Plaza Shopping Center Act/360 0.0316
Malibu Bella Mar Apartments Act/360 0.0316
One Sound Shore Drive Act/360 0.0316
Clinton Apartments Act/360 0.0316
Polo Park Act/360 0.0316
Sangertown Square Mall Act/360 0.1016
Xxxxxxx Plaza Act/360 0.0316
Pines of Green Run Apartments Act/360 0.0316
Pohatcong Plaza Act/360 0.0316
0000 Xxxxxxxxx Xxxxxxxxx Act/360 0.0316
Xxxxxxx Xxxxxxxx Xxxx Xxx/000 0.0000
Xxxxxxxxx Xxxxx Act/360 0.0866
The Chateau Office Act/360 0.0316
Federal Express Building Act/360 0.0316
Parkside Corporate Center Act/360 0.0316
Xxxxxx Xxxx Plaza Act/360 0.0316
Spectrum Office Building Act/360 0.1166
San Xxxxxx Shopping Center Act/360 0.0316
Newpointe Plaza Phase II Act/360 0.0316
East 53rd - Davenport Act/360 0.0316
PGA Commons Act/360 0.0316
00 Xxxxxx X Xxx/000 0.0000
Xxxx Xxxxxxx - Xxxxx Tree Act/360 0.0316
Post and Xxxxxxx Xxx/000 0.0000
Xxxxxxx X&X Mortgage
Property Name Cut-off Date Balance Payment Rate
---------------------------------------------- -------------------- ----------- --------
Canyon Plaza North 7,171,896.16 41,832.43 5.3000
Park Villa Apartments 7,094,790.96 44,643.62 6.4500
Lakeside Shopping Center 7,078,030.81 39,647.37 5.3500
0-00 Xxxxx Xxxxxxxx 6,787,052.52 39,985.85 0.0000
Xxxxxxxx Xxxxxx 6,781,349.28 40,246.30 5.8800
000 Xxxxxxxx Xxxxxx 6,687,242.91 39,397.83 5.8200
Andover Station 6,575,482.54 33,441.23 4.5000
Maverick/Hidden Village Apartments 6,548,656.62 40,391.05 6.2500
Sunchase Olympiad 6,500,000.00 33,977.64 4.7680
Agua Fria Towne Center 6,489,268.68 35,827.59 5.2200
The Shoppes of Xxxxx Road 5,880,287.70 31,672.48 0.0000
Xxxx Xxxx Center 5,754,088.75 34,245.00 5.1000
Beltway Crossing 5,566,143.79 34,074.27 5.7500
Silverado Self Storage 5,556,888.67 35,591.90 6.2300
00000 Xxxxxxxxx Xxxxx 5,076,234.72 31,477.62 6.3100
0000 Xxxxxxx Xxxxxxx 4,940,903.52 29,614.13 5.9800
Springhill Suites by Marriott - Boca Raton 4,567,094.83 35,562.19 7.7700
000 Xxxxxxxx Xxxxxxxxx 4,487,426.38 26,403.89 5.8000
TownePlace Suites by Marriott - Boca Raton 4,324,164.58 33,670.58 7.7700
Centerpoint Shopping Center 4,282,948.94 24,360.99 5.4800
380 Xxxxxxx Apartments 4,181,772.17 22,752.30 5.0800
Citibank Building 4,150,000.00 26,367.43 6.5500
Plaza Medical & Research Center 4,063,771.16 24,066.11 0.0000
XxxxxXxxxx Xxxxxx xx Xxxxxxxx - Xxxx Xxxxxxxxxx 4,008,354.95 31,211.49 7.7700
Montagnet 4,000,000.00 25,467.14 6.5700
San Marco Village 3,991,585.22 22,361.46 5.3600
Xxxxxx Corners Apartments 3,896,435.54 22,438.29 5.6200
0000 X Xxxxxx 3,497,642.82 22,700.93 6.7500
The Harkins Office Building 3,391,395.16 20,868.09 6.2200
Prairie Retail Plaza 3,390,975.58 20,428.46 6.0200
Plaza Fountainside 3,319,764.75 18,657.42 5.3800
Xxxxxxxx Xxxxx Crossing 3,254,764.06 20,755.72 6.5700
The Xxxxxxxx 3,150,000.00 19,518.18 6.3100
Lithia Square 2,791,181.06 15,496.41 5.2700
Oak Business Center 2,790,984.87 15,323.25 5.1700
AAA Self Storage 2,763,855.34 15,872.66 5.1500
Summergate Shopping Center 2,691,921.35 15,330.30 0.0000
Xxxxxxxx Xxxxxx Apartments 2,687,630.76 16,179.69 5.2500
West Little York 2,364,683.51 15,308.81 6.7100
0000 Xxxxx Xxxxx 2,246,650.02 14,803.46 6.8900
Eckerd - Morganton 2,208,476.69 14,216.69 6.6700
Remaining
term to Remaining Interest Accrual Administrative
Property Name Maturity Maturity Amortization Term Basis Cost Rate
---------------------------------------------- --------- ---------- ----------------- ---------------- --------------
Xxxxxx Xxxxx Xxxxx 000 8/11/2013 321 Act/360 0.0866
Park Villa Apartments 119 10/11/2013 359 Act/360 0.0316
Lakeside Shopping Center 117 8/11/2013 357 Act/360 0.0316
0-00 Xxxxx Xxxxxxxx 82 9/11/2010 358 Act/360 0.0316
Franklin Square 117 8/11/2013 357 Act/360 0.0316
000 Xxxxxxxx Xxxxxx 82 9/11/2010 358 Act/360 0.0316
Andover Station 81 8/11/2010 357 Act/360 0.1166
Maverick/Hidden Village Apartments 118 9/11/2013 358 Act/360 0.1166
Sunchase Olympiad 83 10/11/2010 360 Act/360 0.0316
Agua Fria Towne Center 117 8/11/2013 357 Act/360 0.1166
The Shoppes of Xxxxx Road 81 8/11/2010 357 Act/360 0.0000
Xxxx Xxxx Center 79 6/11/2010 295 Act/360 0.1166
Beltway Crossing 115 6/11/2013 319 Act/360 0.0316
Silverado Self Storage 117 8/11/2013 321 Act/360 0.1166
00000 Xxxxxxxxx Xxxxx 119 10/11/2013 359 Act/360 0.0316
0000 Xxxxxxx Xxxxxxx 118 9/11/2013 358 Act/360 0.0316
Springhill Suites by Marriott - Boca Raton 94 9/11/2011 275 Act/360 0.0316
000 Xxxxxxxx Xxxxxxxxx 117 8/11/2013 357 Act/360 0.0316
TownePlace Suites by Marriott - Boca Raton 94 9/11/2011 275 Act/360 0.0316
Centerpoint Shopping Center 116 7/11/2013 356 Act/360 0.0316
380 Xxxxxxx Apartments 116 7/11/2013 356 Act/360 0.0316
Citibank Building 120 11/11/2013 360 Act/360 0.0316
Plaza Medical & Research Center 117 8/11/2013 357 Act/360 0.1166
TownePlace Suites by Marriott - Fort Lauderdale 94 9/11/2011 275 Act/360 0.0316
Montagnet 120 11/11/2013 360 Act/360 0.0316
San Marco Village 58 9/11/2008 358 Act/360 0.1166
Xxxxxx Corners Apartments 119 10/11/2013 359 Act/360 0.0316
0000 X Xxxxxx 000 10/11/2013 359 Act/360 0.0316
The Xxxxxxx Office Building 117 8/11/2013 357 Act/360 0.0316
Prairie Retail Plaza 117 8/11/2013 357 Act/360 0.0316
Plaza Fountainside 117 8/11/2013 357 Act/360 0.1166
Xxxxxxxx Xxxxx Crossing 118 9/11/2013 358 Act/360 0.0316
The Xxxxxxxx 120 11/11/2013 360 Act/360 0.0316
Xxxxxx Xxxxxx 00 8/11/2008 357 Act/360 0.1166
Oak Business Center 117 8/11/2013 357 Act/360 0.0866
AAA Self Storage 57 8/11/2008 321 Act/360 0.1166
Summergate Shopping Center 117 8/11/2013 357 Act/360 0.0316
Xxxxxxxx Xxxxxx Xxxxxxxxxx 00 8/11/2010 297 Act/360 0.0316
West Little York 117 8/11/2013 357 Act/360 0.0316
0000 Xxxxx Xxxxx 118 9/11/2013 358 Act/360 0.0316
Xxxxxx - Xxxxxxxxx 000 10/11/2013 359 Act/360 0.0316
Remaining
Monthly P&I Mortgage term to
Property Name Cut-off Date Balance Payment Rate Maturity Maturity
---------------------------------------------- -------------------- ----------- -------- --------- ----------
East Wenatchee Storage 1,995,214.98 13,805.60 6.7400 118 9/11/2013
Gulfport Plaza 1,994,229.06 11,557.36 5.6600 117 8/11/2013
00 Xxxx Xxxxxx and 000-000 Xxxxxxxxxx Xxxxxx 1,945,581.38 12,544.14 6.6700 117 8/11/2013
IBP Retail Strip 1,642,760.52 10,132.44 5.5000 117 8/11/2013
Parliament Place 1,493,490.06 8,125.82 5.0800 116 7/11/2013
Xxxxxx Xxxxx Apartments 1,196,731.63 7,125.32 5.9100 117 8/11/2013
IBP KFC & Whataburger 1,144,954.29 7,062.01 5.5000 117 8/11/2013
CompUSA 1,048,787.40 7,089.68 6.5000 119 10/11/2013
Charger Square 998,336.94 6,268.16 6.4200 118 9/11/2013
Bottlebrush Apartments 986,203.32 5,981.17 6.1000 119 10/11/2013
Gulf Breeze Mobile Home Park 980,000.00 5,812.74 5.9000 84 11/11/2010
IBP KFC 696,928.71 4,298.61 5.5000 117 8/11/2013
Remaining Interest Accrual Administrative
Property Name Amortization Term Basis Cost Rate
---------------------------------------------- ----------------- ---------------- --------------
East Wenatchee Storage 298 Act/360 0.0316
Gulfport Plaza 357 Act/360 0.1166
00 Xxxx Xxxxxx and 000-000 Xxxxxxxxxx Xxxxxx 357 Act/360 0.0316
IBP Retail Strip 297 Act/360 0.0316
Parliament Place 356 Act/360 0.0316
Xxxxxx Xxxxx Apartments 357 Act/360 0.1166
IBP KFC & Whataburger 297 Act/360 0.0316
CompUSA 299 Act/360 0.0316
Xxxxxxx Xxxxxx 000 Xxx/000 0.0000
Xxxxxxxxxxx Apartments 359 Act/360 0.0316
Gulf Breeze Mobile Home Park 360 Act/360 0.0316
IBP KFC 297 Act/360 0.0316
Primary Servicing
Property Name Fee Ground Lease? Mortgage Loan Seller
---------------------------------------------- ---------------- -------------------- --------------------
Xxx Xxxxx 0.0000 Xxxxxxxxx XX
000 Xxxx 00xx Xxxxxx 0.0300 Fee Simple UBS
GGP JP Realty Portfolio 0.0300 Fee Simple/Leasehold LB
Westfield Shoppingtown South County 0.0300 Fee Simple UBS
Dartmouth Mall 0.0300 Fee Simple LB
00 Xxxxx Xxxxxx 0.0300 Leasehold UBS
Oakwood Dulles 0.0950 Fee Simple LB
The Plaza at Delray 0.0300 Fee Simple LB
Liberty Tree Mall 0.0300 Fee Simple UBS
Milestone Hotel Portfolio 0.0300 Fee Simple UBS
00 Xxxx 000xx Xxxxxx 0.0300 Fee Simple UBS
Oakwood Grand Venetian 0.1150 Fee Simple XX
Xxxxx Tower 0.0300 Fee Simple LB
Centre at Westbank 0.0300 Fee Simple UBS
Xxxxx Hill Apartments 0.0300 Fee Simple LB
Oceanview Village Shopping Center 0.0300 Fee Simple UBS
Grand Mesa Center 0.0300 Fee Simple XX
Xxxxxxx Plaza Shopping Center 0.0300 Fee Simple LB
Malibu Bella Mar Apartments 0.0300 Fee Simple UBS
Xxx Xxxxx Xxxxx Xxxxx 0.0000 Xxx Simple UBS
Clinton Apartments 0.0300 Fee Simple UBS
Polo Park 0.0300 Fee Simple LB
Sangertown Square Mall 0.0150 Fee Simple XX
Xxxxxxx Plaza 0.0300 Fee Simple LB
Pines of Green Run Apartments 0.0300 Fee Simple LB
Pohatcong Plaza 0.0300 Leasehold UBS
0000 Xxxxxxxxx Xxxxxxxxx 0.0300 Fee Simple UBS
Loveton Business Park 0.1150 Fee Simple LB
Xxxxxxxxx Plaza 0.0850 Fee Simple LB
The Chateau Office 0.0300 Fee Simple UBS
Federal Express Building 0.0300 Fee Simple UBS
Parkside Corporate Center 0.0300 Fee Simple LB
Xxxxxx Xxxx Plaza 0.0300 Fee Simple LB
Spectrum Office Building 0.1150 Fee Simple LB
San Xxxxxx Shopping Center 0.0300 Fee Simple LB
Newpointe Plaza Phase II 0.0300 Fee Simple LB
East 53rd - Davenport 0.0300 Fee Simple LB
PGA Commons 0.0300 Fee Simple LB
43 Avenue C 0.0300 Fee Simple UBS
Best Western - Green Tree 0.0300 Fee Simple UBS
Post and Paddock 0.0300 Fee Simple LB
Canyon Plaza North 0.0850 Leasehold XX
XXX Mortgage Anticipated
Property Name Defeasance Loan Repayment Date
---------------------------------------------- ------------------------ ------------ --------------
The Grove Defeasance Yes 6/11/2013
000 Xxxx 00xx Xxxxxx Defeasance Yes 9/11/2013
GGP JP Realty Portfolio Defeasance Yes 7/11/2008
Westfield Shoppingtown South County Defeasance Yes 10/11/2013
Dartmouth Mall Defeasance No
00 Xxxxx Xxxxxx Defeasance No
Oakwood Dulles Defeasance Yes 9/11/2008
The Plaza at Delray Defeasance No
Liberty Tree Mall Defeasance No
Milestone Hotel Portfolio Defeasance No
00 Xxxx 000xx Xxxxxx Defeasance No
Oakwood Grand Venetian Defeasance No
Xxxxx Tower Defeasance No
Centre at Westbank Defeasance No
Xxxxx Hill Apartments Greater of YM or 1% No
Oceanview Village Shopping Center Defeasance Yes 8/11/2013
Grand Mesa Center Defeasance No
Gunston Plaza Shopping Center Defeasance No
Malibu Bella Mar Apartments Defeasance No
One Sound Shore Drive Defeasance No
Clinton Apartments Defeasance No
Polo Park Defeasance No
Sangertown Square Mall Defeasance Yes 12/1/2009
Xxxxxxx Plaza Defeasance No
Pines of Green Run Apartments Defeasance No
Pohatcong Plaza Defeasance No
0000 Xxxxxxxxx Xxxxxxxxx Defeasance No
Loveton Business Park Defeasance No
Xxxxxxxxx Plaza Defeasance No
The Chateau Office Defeasance No
Federal Express Building Defeasance Yes 10/11/2013
Parkside Corporate Center Defeasance No
Xxxxxx Xxxx Plaza Defeasance No
Spectrum Office Building Defeasance No
San Xxxxxx Shopping Center Defeasance Yes 7/11/2018
Newpointe Plaza Phase II Defeasance No
East 53rd - Davenport Defeasance No
PGA Commons Defeasance No
43 Avenue C Defeasance No
Best Western - Green Tree Defeasance No
Post and Paddock Greater of YM or 1% No
Canyon Plaza North Defeasance No
Primary Servicing
Property Name Fee Ground Lease? Mortgage Loan Seller
---------------------------------------------- ----------------- ------------------ --------------------
Park Villa Apartments 0.0300 Fee Simple UBS
Lakeside Shopping Center 0.0300 Fee Simple LB
0-00 Xxxxx Xxxxxxxx 0.0300 Fee Simple UBS
Xxxxxxxx Xxxxxx 0.0000 Xxx Xxxxxx XX
000 Xxxxxxxx Xxxxxx 0.0000 Fee Simple UBS
Andover Station 0.1150 Fee Simple LB
Maverick/Hidden Village Apartments 0.1150 Fee Simple LB
Sunchase Olympiad 0.0300 Fee Simple LB
Agua Fria Towne Center 0.1150 Fee Simple LB
The Shoppes of Xxxxx Road 0.1150 Fee Simple LB
Rock Road Center 0.1150 Fee Simple LB
Beltway Crossing 0.0300 Fee Simple LB
Silverado Self Storage 0.1150 Fee Simple LB
00000 Xxxxxxxxx Xxxxx 0.0300 Fee Simple UBS
0000 Xxxxxxx Xxxxxxx 0.0300 Fee Simple UBS
Springhill Suites by Marriott - Boca Raton 0.0300 Fee Simple LB
000 Xxxxxxxx Xxxxxxxxx 0.0300 Fee Simple LB
TownePlace Suites by Marriott - Boca Raton 0.0300 Fee Simple LB
Centerpoint Shopping Center 0.0300 Fee Simple LB
380 Xxxxxxx Apartments 0.0300 Fee Simple LB
Citibank Building 0.0300 Fee Simple UBS
Plaza Medical & Research Center 0.1150 Fee Simple LB
TownePlace Suites by Marriott - Fort Lauderdale 0.0300 Fee Simple XX
Xxxxxxxxx 0.0300 Fee Simple UBS
San Marco Village 0.1150 Fee Simple XX
Xxxxxx Corners Apartments 0.0300 Fee Simple UBS
2101 K Street 0.0300 Fee Simple UBS
The Xxxxxxx Office Building 0.0300 Fee Simple UBS
Prairie Retail Plaza 0.0300 Fee Simple LB
Plaza Fountainside 0.1150 Fee Simple XX
Xxxxxxxx Xxxxx Crossing 0.0300 Fee Simple LB
The Xxxxxxxx 0.0300 Leasehold UBS
Lithia Square 0.1150 Fee Simple LB
Oak Business Center 0.0850 Fee Simple LB
AAA Self Storage 0.1150 Fee Simple LB
Summergate Shopping Center 0.0300 Fee Simple LB
Hyacinth Square Apartments 0.0300 Fee Simple XX
Xxxx Little York 0.0300 Fee Simple UBS
0000 Xxxxx Xxxxx 0.0300 Fee Simple UBS
Eckerd - Morganton 0.0300 Fee Simple UBS
East Wenatchee Storage 0.0300 Fee Simple UBS
Gulfport Plaza 0.1150 Fee Simple XX
XXX Mortgage Anticipated
Property Name Defeasance Loan Repayment Date
---------------------------------------------- ------------------------ ------------ --------------
Park Villa Apartments Defeasance No
Lakeside Shopping Center Defeasance No
0-00 Xxxxx Xxxxxxxx Defeasance/Fixed Penalty No
Franklin Square Defeasance No
000 Xxxxxxxx Xxxxxx Defeasance/Fixed Penalty No
Andover Station Defeasance No
Maverick/Hidden Village Apartments Defeasance No
Sunchase Olympiad Defeasance No
Agua Fria Towne Center Defeasance No
The Shoppes of Xxxxx Road Defeasance No
Rock Road Center Defeasance No
Beltway Crossing Defeasance No
Silverado Self Storage Defeasance No
00000 Xxxxxxxxx Xxxxx Defeasance No
0000 Xxxxxxx Xxxxxxx Defeasance No
Springhill Suites by Marriott - Boca Raton Defeasance No
000 Xxxxxxxx Xxxxxxxxx Greater of YM or 1% No
TownePlace Suites by Marriott - Boca Raton Defeasance No
Centerpoint Shopping Center Defeasance No
380 Xxxxxxx Apartments Defeasance No
Citibank Building Defeasance No
Plaza Medical & Research Center Defeasance No
TownePlace Suites by Marriott - Fort Lauderdale Defeasance No
Montagnet Defeasance No
San Marco Village Defeasance No
Xxxxxx Corners Apartments Defeasance No
2101 K Street Defeasance No
The Xxxxxxx Office Building Defeasance No
Prairie Retail Plaza Defeasance No
Plaza Fountainside Defeasance No
Xxxxxxxx Xxxxx Crossing Defeasance No
The Xxxxxxxx Defeasance No
Lithia Square Defeasance No
Oak Business Center Defeasance No
AAA Self Storage Defeasance No
Summergate Shopping Center Defeasance No
Hyacinth Square Apartments Defeasance No
West Little York Greater of YM or 1% No
0000 Xxxxx Xxxxx Defeasance No
Eckerd - Morganton Defeasance No
East Wenatchee Storage Defeasance No
Gulfport Plaza Defeasance No
Primary Servicing
Property Name Fee Ground Lease? Mortgage Loan Seller
---------------------------------------------- ----------------- -------------------- --------------------
00 Xxxx Xxxxxx and 000-000 Xxxxxxxxxx Xxxxxx 0.0300 Fee Simple UBS
IBP Retail Strip 0.0300 Fee Simple LB
Parliament Place 0.0300 Fee Simple XX
Xxxxxx Pines Apartments 0.1150 Fee Simple LB
IBP KFC & Whataburger 0.0300 Fee Simple LB
CompUSA 0.0300 Fee Simple UBS
Charger Square 0.0300 Fee Simple LB
Bottlebrush Apartments 0.0300 Fee Simple UBS
Gulf Breeze Mobile Home Park 0.0300 Fee Simple UBS
IBP KFC 0.0300 Fee Simple XX
XXX Mortgage Anticipated
Property Name Defeasance Loan Repayment Date
---------------------------------------------- ------------------------ ------------ --------------
00 Xxxx Xxxxxx and 919-921 Xxxxxxxxxx Avenue Defeasance No
IBP Retail Strip Defeasance No
Parliament Place Defeasance No
Xxxxxx Xxxxx Apartments Defeasance No
IBP KFC & Whataburger Defeasance No
CompUSA Defeasance No
Charger Square Defeasance No
Bottlebrush Apartments Defeasance No
Gulf Breeze Mobile Home Park Defeasance No
IBP KFC Defeasance No
Credit Lease Loan (Tenant,
Property Name ARD Spread Guarantor or Rated party)
---------------------------------------------- ------------------------------------------- --------------------------
The Grove 5% + Greater of (Initial Rate or Treasury) No
000 Xxxx 00xx Xxxxxx Contract Rate + 2% No
GGP JP Realty Portfolio 5% + Greater of (Initial Rate or Treasury) No
Westfield Shoppingtown South County 4% + Greater of (Contract Rate or Treasury) No
Dartmouth Mall No
00 Xxxxx Xxxxxx Xx
Xxxxxxx Xxxxxx 0% + Greater of (Initial Rate or Treasury) No
The Plaza at Delray No
Liberty Tree Mall No
Milestone Hotel Portfolio No
00 Xxxx 000xx Xxxxxx No
Oakwood Grand Venetian No
Xxxxx Tower No
Centre at Westbank No
Xxxxx Hill Apartments No
Oceanview Village Shopping Center 2% + Greater of (Contract Rate or Treasury) No
Grand Mesa Center No
Gunston Plaza Shopping Center No
Malibu Bella Mar Apartments No
One Sound Shore Drive No
Clinton Apartments No
Polo Park No
Sangertown Square Mall 5% + Greater of (Initial Rate or Treasury) No
Xxxxxxx Plaza No
Pines of Green Run Apartments No
Pohatcong Plaza No
0000 Xxxxxxxxx Xxxxxxxxx No
Loveton Business Park No
Xxxxxxxxx Plaza No
The Chateau Office No
Federal Express Building 2% + Greater of (Contract Rate or Treasury) No
Parkside Corporate Center No
Xxxxxx Xxxx Plaza No
Spectrum Office Building No
San Xxxxxx Shopping Center 2% + Greater of (Initial Rate or Treasury) No
Newpointe Plaza Phase II No
East 53rd - Davenport No
PGA Commons No
43 Avenue C No
Best Western - Green Tree No
Post and Paddock No
Canyon Plaza North No
Cross Mortgage Loan
Property Name Collateralized Seller Loan ID
---------------------------------------------- -------------- --------------
The Grove No LG035
000 Xxxx 00xx Xxxxxx No 10011
GGP JP Realty Xxxxxxxxx Xx XX000
Xxxxxxxxx Xxxxxxxxxxxx Xxxxx Xxxxxx No 0000
Xxxxxxxxx Xxxx No 030507003
00 Xxxxx Xxxxxx Xx 0000
Xxxxxxx Xxxxxx No 030514002
The Plaza at Delray No 030529010
Liberty Tree Mall No 9996
Milestone Hotel Portfolio No 9956
00 Xxxx 000xx Xxxxxx Xx 0000
Xxxxxxx Xxxxx Venetian No 030514003
Xxxxx Tower No 030429001
Centre at Westbank No 9947
Xxxxx Hill Apartments No 030410005
Oceanview Xxxxxxx Xxxxxxxx Xxxxxx Xx 0000
Xxxxx Xxxx Center No 030328003
Gunston Plaza Shopping Center No 030625003
Malibu Bella Mar Apartments No 9915
One Sound Shore Drive No 9972
Clinton Apartments No 9935
Polo Park No 030611002
Xxxxxxxxxx Xxxxxx Xxxx Xx XX000
Xxxxxxx Xxxxx No 030527001
Pines of Green Run Apartments No 030428001
Xxxxxxxxx Xxxxx Xx 0000
0000 Xxxxxxxxx Xxxxxxxxx No 9858
Loveton Business Park No 030423002
Xxxxxxxxx Plaza No 030602001
The Chateau Office No 9900
Federal Express Building No 9840
Parkside Corporate Center No 030619001
Xxxxxx Xxxx Plaza No 030327008
Spectrum Office Building No 030529002
San Xxxxxx Shopping Center No 030305002
Newpointe Plaza Phase II No 030127002
East 53rd - Davenport No 020913002
PGA Commons No 030321003
00 Xxxxxx X Xx 0000
Xxxx Xxxxxxx - Xxxxx Tree No 9942
Post and Paddock No 021211003
Canyon Plaza North No 030303004
Credit Lease Loan (Tenant, Cross Mortgage Loan
Property Name ARD Spread Guarantor or Rated party) Collateralized Seller Loan ID
---------------------------------------------- ------------------- -------------------------- -------------- --------------
Park Xxxxx Xxxxxxxxxx Xx Xx 0000
Xxxxxxxx Xxxxxxxx Xxxxxx No No 030618004
0-00 Xxxxx Xxxxxxxx No No 0000
Xxxxxxxx Xxxxxx No No 020805004
000 Xxxxxxxx Xxxxxx No No 7585
Andover Station No No 030319005
Maverick/Hidden Village Apartments No No 020320001
Sunchase Xxxxxxxx Xx Xx 000000000
Xxxx Xxxx Xxxxx Center No No 030411005
The Shoppes of Xxxxx Road No No 030522001
Rock Road Center No No 021007002
Beltway Crossing No No 030206006
Silverado Self Storage No No 030501005
00000 Xxxxxxxxx Xxxxx No No 9853
0000 Xxxxxxx Xxxxxxx No No 9872
Springhill Suites by Marriott - Boca Raton No Yes (F) 010828003
000 Xxxxxxxx Xxxxxxxxx No No 021211004
TownePlace Suites by Marriott - Boca Raton No Yes (F) 010828001
Centerpoint Shopping Center No No 030404001
380 Xxxxxxx Apartments No No 030402003
Citibank Building No No 9686
Plaza Medical & Research Center No No 030428002
TownePlace Suites by Marriott - Fort Lauderdale No Yes (F) 010828002
Montagnet No No 9776
San Marco Village No No 030519002
Xxxxxx Corners Apartments No No 9867
2101 K Street No No 9949
The Xxxxxxx Office Building No No 9868
Prairie Retail Plaza No No 030331007
Plaza Fountainside No No 030508001
Xxxxxxxx Xxxxx Crossing No No 030616002
The Xxxxxxxx No No 9866
Lithia Square No No 030523002
Oak Business Center No No 030425003
AAA Self Storage No No 030501004
Summergate Shopping Center No No 030327005
Xxxxxxxx Xxxxxx Xxxxxxxxxx Xx Xx 000000000
Xxxx Xxxxxx Xxxx No No 9835
0000 Xxxxx Xxxxx No No 9691
Eckerd - Morganton No No 9914
East Wenatchee Storage No No 0000
Xxxxxxxx Xxxxx No No 030513003
Credit Lease Loan (Tenant,
Property Name ARD Spread Guarantor or Rated party)
---------------------------------------------- ------------------------------------------- --------------------------
00 Xxxx Xxxxxx and 000-000 Xxxxxxxxxx Xxxxxx No
IBP Retail Strip No
Parliament Place No
Xxxxxx Xxxxx Apartments No
IBP KFC & Whataburger No
CompUSA No
Charger Square No
Bottlebrush Apartments No
Gulf Breeze Mobile Home Park No
IBP KFC No
Cross Mortgage Loan
Property Name Collateralized Seller Loan ID
---------------------------------------------- -------------- --------------
00 Xxxx Xxxxxx and 000-000 Xxxxxxxxxx Xxxxxx No 8965
IBP Retail Strip Yes (D) 030710009
Parliament Place No 030402001
Xxxxxx Xxxxx Apartments No 030513005
IBP KFC & Whataburger Yes (D) 030421001
CompUSA No 0000
Xxxxxxx Xxxxxx No 030416001
Bottlebrush Apartments No 9917
Gulf Breeze Mobile Home Park No 9925
IBP KFC Yes (D) 030711002
SCHEDULE II
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
NONE
SCHEDULE III
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR
The following are the exceptions for the Xxxxxx Mortgage Loans to the
Representations and Warranties set forth in Section 2.04(b) of the Pooling and
Servicing Agreement (each such exception being applicable to the particular
numbered Representation and Warranty from Section 2.04(b) identified opposite
such exception):
--------------------------------------------------------------------------------
REPRESENTATION FROM
SECTION 2.04 (B) PROPERTY AND EXCEPTION
--------------------------------------------------------------------------------
(v) Loan Document Status GGP JP Realty Portfolio. The related loan documents
provide that the related mortgagor will be liable
for any material breach of any representation,
warranty or covenant under the environmental
indemnity or under provisions in the mortgage
relating to environmental laws or hazardous
materials.
Gunston Square Shopping Center. The related loan
documents provide that the carveout guarantor's
liability for this loan is limited to $18,000,000
(the original principal amount of the senior
mortgage loan), together with interest and other
sums payable with respect to the loan, including
sums advanced to protect the mortgaged property and
the lien of the security instrument.
--------------------------------------------------------------------------------
(viii) First Lien GGP JP Realty Portfolio. Salem - That portion of the
Salem Center mortgaged real property that is
improved and operated as a theater (the "Salem
Center Theater Parcel") is subject to the option of
the tenant thereof under its lease of the Salem
Center Theater Parcel, to purchase such parcel at
the expiration of such lease (occurring
approximately May 31, 2009), or at the expiration of
any renewal term thereof.
Such lease also requires the landlord
thereunder to offer the tenant the first opportunity
to purchase the Salem Center Theater Parcel for the
list price at which the landlord has elected to list
such property. Such right entitles the tenant to
notice of such list price and a thirty day period
following such notice in which to elect, by
submitting an executed purchase agreement to the
landlord, to purchase the Salem Center Theater
Parcel on the terms offered by the landlord.
Grand Teton - A prior grantor of options with
respect to the Grand Teton Mall has reserved to
itself the right to make the first offer to purchase
such property in the event the then owner of such
property should determine to sell such property.
Such grantor shall be entitled to notice of the
property owner's intention to sell and a 60 day
period thereafter in which to negotiate a purchase
agreement. In addition, such grantor has reserved to
itself the ongoing right to approve all development
plans for the subject property
--------------------------------------------------------------------------------
(xiii) Property Insurance The Grove. The related loan documents require
business interruption or rental loss insurance for
365 days following restoration.
GGP JP Realty Portfolio. The related loan documents
require business interruption or rental loss
insurance following restoration until the sooner to
occur of 60 days after restoration or until such
property achieves its pre-
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
REPRESENTATION FROM
SECTION 2.04 (B) PROPERTY AND EXCEPTION
--------------------------------------------------------------------------------
casualty income level.
--------------------------------------------------------------------------------
(xv) No Payment Canyon Plaza North. Borrower was more than 30 days
Delinquency delinquent on its September 2003 debt service
payment.
--------------------------------------------------------------------------------
(xx) Environmental Sangertown Square Mall. The environmental site
Conditions assessment for the loan during the 12-month period
preceding the Cut-Off Date was an environmental
document review. The underlying Phase I report was
completed more than 12 months preceding the Cut-Off
Date; the environmental document review was
conducted within the 12-month period preceding the
Cut-Off Date, however, and pursuant to that review
the Phase I report's representation regarding
consistency with ASTM standards was confirmed, and
an updated database search performed.
380 Xxxxxxx and Polo Park Apartments.
Notwithstanding the Phase I consultants'
representations regarding compliance with ASTM
standards, a desktop review identified potential
deficiencies with the historical research component
of the Phase I environmental assessments for the
above loans. In particular, the desktop review
indicated that the historical search component
required by ASTM standards, although substantially
completed, was not fully compliant.
Andover Station. The subject property is part of a
larger 50-acre parcel which was listed on the United
States' Final Priority List ("NPL") as a Superfund
site in 1983. Pursuant to a Phase I consultant
report for the related Mortgaged Property, portions
of the larger site, including the subject property
have been formally delisted from the NPL.
--------------------------------------------------------------------------------
(xxii) Bankruptcy Maverick/Hidden Village Apartments. Borrower filed
for bankruptcy in 1998, according to a memorandum
from originating counsel, a final decree for such
bankruptcy was issued in 2000.
--------------------------------------------------------------------------------
(xxv) Whole Loan Sunchase Olympiad. An affiliate of the Xxxxxx
Mortgage Loan Seller owns 90% of the ownership
interests in the related borrowers, including a .1%
managing member interest in the entity which, via
direct and indirect interests, owns 100% of the
related borrower.
--------------------------------------------------------------------------------
(xxvi) Due-on- Xxxxx Tower. Borrower's equity holders have obtained
Encumbrance a mezzanine loan in the amount of $3,950,000,
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 Mortgagee.
Xxxxx Tower and Gunston Plaza. 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: (i) execution of a subordination and
intercreditor agreement, (ii) lender's review and
approval of the terms, (iii) the loan is made by a
"Qualified Mezzanine Lender" (as defined in the loan
documents); (ii) and satisfaction of certain debt
service coverage ratio and combined loan to value
ratio requirements.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
REPRESENTATION FROM
SECTION 2.04 (B) PROPERTY AND EXCEPTION
--------------------------------------------------------------------------------
Xxxxxxx Plaza and Lakeside Shopping Center. 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: (i) execution of a subordination and
intercreditor agreement, (ii) lender's review and
approval of the terms, (iii) the loan is made by a
"Qualified Mezzanine Lender" (as defined in the loan
documents) or the related borrower; (ii) and
satisfaction of certain debt service coverage ratio
and combined loan to value ratio requirement's.
Oakwood Grand Venetian Apartments. A mezzanine loan
in the amount of $7,000,000 secured by 100% of
direct and indirect interests in the borrower,
existed at the time of origination of the senior
mortgage loan. In connection with the mezzanine
loan, the mezzanine lender has executed an
intercreditor agreement with the mortgagee.
Oakwood Dulles. A mezzanine loan in the amount of
$14,650,973 (representing an original principal
amount of $11,100,000, with the balance constituting
deferred and accrued interest) secured by 100% of
the direct and indirect interests borrower existed
at the time of origination of the senior mortgage
loan. In connection with the mezzanine loan, the
mezzanine lender has executed an intercreditor
agreement with the mortgagee.
Sunchase Olympiad. Borrower's equity holders have
obtained a mezzanine loan from Xxxxxx Brothers
Holdings, Inc. in the original principal amount of
$1,226,000, secured by pledges of all of the direct
and indirect ownership interests in the borrower. In
connection with the mezzanine loan, the mezzanine
lender has executed an intercreditor agreement with
the mortgagee.
--------------------------------------------------------------------------------
(xxvii) Due-on-Sale AAA Self Storage. The related loan documents provide
that, Xxxxxx AAA Investment, LLC and BFBA
Investment, LLC, each a tenant in common of borrower
may each contribute their undivided fee interest in
the mortgaged property to SK 290 West, L.P. ("SK"),
a tenant in common of borrower in exchange for
limited partnership interests in SK within one year
of origination without lender's consent, subject to
the satisfaction of certain conditions, which among
others includes: (i) SK's execution of an agreement
ratifying and confirming its obligations under the
loan documents, and (ii) lender's receipt of an
enforceability opinion.
Andover Station. The related loan documents provide
that the following transfers do not require lender's
consent: (i) transfers of the membership interest or
any portion thereof in the borrower to a "holding
company" which may subsequently be formed in
accordance with certain criteria specified in the
related loan documents and subject to certain
criteria as set forth in the loan documents; and
(ii) transfers of shareholder or membership
interests of (1) any parent entities of United
Properties Investments, LLC ("UPI"), the manager of
borrower or (2) UPI so long as UPI at the time of
the transfer is either (x) not the carveout
guarantor for the loan, (y) no longer the manager of
either the borrower or the subject holding company,
or (z) has complied with the provisions of the
mortgage regarding the transfer of entire membership
interest
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
REPRESENTATION FROM
SECTION 2.04(B) PROPERTY AND EXCEPTION
--------------------------------------------------------------------------------
in the subject holding company or certain transfers
by UPI.
X.X. Xxxx Portfolio - Springhill Suites (Boca
Rayon), Townplace Suites (Boca Raton) and Townplace
Suites (Ft. Lauderdale). The related loan documents
provide that transfers to wholly owned subsidiaries
of the X.X. Xxxx Real Estate Investment Trust are
permitted.
Canyon Plaza North. The related loan documents
permit release of one or more designated "Release
Parcels" upon the satisfaction of specified
conditions including, but not limited to, the
following: (a) borrower shall cause to be created
and insured under lender's title insurance policy
such reciprocal easements for ingress, egress,
parking and utilities over any such release parcels
as lender shall require; (b) at the time of such
release the remaining property shall constitute
lawfully subdivided parcels and separate tax lots in
compliance with all zoning laws; and (f)
satisfaction of certain debt service coverage ratio
and combined loan to value ratio requirements for
the remaining property. Lender shall not be entitled
to receive any portion of the proceeds realized by
borrower from the transfer of a release parcel.
Xxxxx Xxxx Apartments. The related loan documents
provide that the following transfers shall not
require lender consent (subject to the satisfaction
of certain additional conditions): (i) a transfer of
the related mortgaged property to a "Qualified
Transferee" (as defined in the loan documents); (ii)
a transfer of the managing membership interest of
Lyon Housing III, LLC in the borrower to a Xxxxxx
Mae Affiliate(as defined in the loan documents); and
(iii) transfers of the membership interests in the
borrower, provided that, among other conditions (A)
following such transfer General Xxxxxxx Xxxx will
continue to directly or indirectly control borrower,
(B) General Lyon (or certain related parties) shall
own directly or indirectly, at least 17.1% of the
equity interests in the borrower; (C) the Lyon
Family (as defined in the loan documents), a
"Qualified Transferee" and/or a Xxxxxx Xxx Affiliate
having a "Permitted Fund Manager" (as defined in the
loan documents) as its managing member or general
partner shall own, directly or indirectly, at least
51% of the equity interests in the borrower, and (D)
if the subject transfer is more than 49% delivery of
a nonconsolidation opinion.
Xxxxxxx Plaza and Lakeside Shopping Center. The
related loan documents permit, without lender
consent and subject to special purpose entity
restrictions set forth in the related loan
documents, transfers between the current members of
the borrower and its respective principals.
Xxxxxxxxx Plaza. The related loan documents permit,
without lender consent: (I) a sale, transfer or
conveyance by any tenant in common comprising part
of borrower of all of the interests of such tenant
in common of borrower to a newly-formed entity that
(A) satisfies the special purpose entity criteria
contained in the loan documents, (B) has
constituents identical to the constituents of the
tenants in common comprising borrower as of the date
of origination and (C) is otherwise satisfactory to
lender; and (ii) any sale, transfer or conveyance of
the interests of any tenant in common of the
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
REPRESENTATION FROM
SECTION 2.04(B) PROPERTY AND EXCEPTION
--------------------------------------------------------------------------------
borrower to any of the other tenants in common
comprising part of borrower.
Polo Park. The related loan documents provide that
lender consent is not required for a sale or
transfer by Polo Park Exchange, L.L.C., a borrower
and tenant in common owner of the related mortgaged
property, of all its interest in the mortgaged
property to Winterbrook Apartments, L.L.C.
("Winterbrook Apartments"), or any immediate family
member of the principals of Winterbrook Apartments,
subject to certain criteria, including among others:
(i) Winterbrook Apartments' assumption of the
obligations under the loan; and (ii) the other
co-tenants in common consent to such assumption by
Winterbrook Apartments, L.L.C. (and the
corresponding release of Polo Park Exchange, L.L.C.)
and ratify and confirm their continuing joint and
several liability for the obligations under the loan
documents.
Post and Paddock. The related loan documents permit,
without lender consent, any transfer of the interest
of Africk Family Limited Partnership, a borrower and
tenant in common of the mortgaged property, to P&P
Eagle Industrial Park, L.P., a borrower and
co-tenant in common of the mortgaged property.
Silverado Self Storage. The related loan documents
provide that, of Xxxxxx Silverado I, LLC and KM
Ventures, LLC, each a borrower and tenant in common
of the mortgaged property, may each contribute their
undivided fee interest in the mortgaged property to
SK Silverado, LLC, a borrower and tenant in common
of the mortgaged property in exchange for limited
partnership interests in SK Silverado, LLC within
one year of origination subject to the satisfaction
of certain conditions, which include: (i) lender's
receipt of an agreement executed by SK Silverado,
LLC, ratifying and confirming its obligations under
the loan documents; and (ii) lender's receipt of an
enforceability opinion.
Xxxxxxxx Xxxxx Crossing. The related loan documents
provide that a transfer or pledge of stock in
Xxxxxxxx Realty Company to a current stockholder is
permitted.
Sunchase Olympiad. Members of the borrower may
transfer membership interests amongst themselves or
their wholly owned affiliates one or more times
without lender's consent, provided, among other
conditions, the borrower remains under the direct or
indirect control of (i) two principals or (ii)
Xxxxxx Brothers Holdings Inc. ("LBHI"). LBHI or an
entity owned or controlled by it (together, the
"Xxxxxx Members") may transfer its direct or
indirect membership interest in either borrower one
or more times without lender's consent, to either a
"Permitted Transferee" or a "Qualified Transferee"
(each as defined in the loan documents).
The Plaza at Delray. The related loan documents
provide that lender consent is not required for the
sale or pledge of the direct or indirect interests
in the borrower, provided, among other conditions,
at all times during the term of the loan, Investcorp
International, Inc. or any Affiliate must (A) own,
directly or indirectly, at least 7.5% of the voting
and beneficial interests in the borrower
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
REPRESENTATION FROM
SECTION 2.04(B) PROPERTY AND EXCEPTION
--------------------------------------------------------------------------------
and (B) control the day-to-day operations of the
borrower.
The Grove. The related loan documents permit the
sale (but not the pledge or mortgaging) of the
related property and the direct or indirect
interests in the related borrower subject to certain
conditions, including: (i) transferee is a special
purpose entity and 51% owned and controlled,
directly or indirectly, by a "permitted owner" (as
defined in the loan documents), (ii) lender's
receipt of a nonconsolidation opinion; (iii)
transferee's assumption of the obligations of the
related borrower; and (iv) the related property
continues to be managed by current manager or else
by a "Qualifying Manager."
GGP JP Realty Portfolio. The related loan documents
permit the sale (but not the pledge or mortgaging)
of the related property subject to certain
conditions including: (i) no event of default shall
have occurred and be continuing; (ii) transferee is
a special purpose entity and at least 50% of the
direct equity interests in the transferee are owned,
directly or indirectly, by a "permitted owner",
(iii) lender's receipt of a nonconsolidation opinion
which is reasonably acceptable to the rating agency
rating the Certificates; (iv) transferee's
assumption of the obligations of the related
borrower; and (v) the related property continues to
be managed by current manager or else will be
managed by a "qualifying manager."
The related loan documents further permit the
sale (but not the pledge or hypothecation) of direct
or indirect interests in the related borrower
provided certain conditions, including the
following, are satisfied: (i) event of default shall
not have occurred and be continuing; (ii) transferee
is a special purpose entity and at least 50% of the
direct equity interests in the transferee are owned,
directly or indirectly, by a "permitted owner";
(iii) lender has received of a nonconsolidation
opinion with respect to certain transfers of more
than 49% of the interests in borrower; and (iv) the
related property will continue to be managed by
current manager or else must be managed by a
"qualifying manager."
Any partner of Price Development Company,
Limited Partnership ("Price") may transfer or redeem
such interest, provided that Price shall continue to
be controlled by General Growth Properties, Inc.
("GGP") or GGP Limited Partnership. Any shareholder
of GGP/Homart, Inc., or any member of GGP/Homart II,
LLC or of GGPLP L.L.C., may transfer its shares or
membership interest, as the case may be, in such
entity provided that either GGP, GGP Limited
Partnership or the New York State Common Retirement
Fund ("NYSCRF") retains control of such entity. Any
member of GGP-TRS L.L.C. may transfer its membership
interest in such entity provided that either GGP,
GGP Limited Partnership or the Teachers Retirement
System of Illinois ("TRS") retains control of such
entity. Any shareholder of GGP may transfer or
redeem their shares in GGP and any equity holder in
NYSCRF or TRS may transfer or redeem such interest.
--------------------------------------------------------------------------------
(xxviii) Mortgagor Oakwood Dulles, Oakwood Grand Venetian. The related
Concentration mortgage loans constitute approximately 5.6% of the
Cut-Off Date Balance.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
REPRESENTATION FROM
SECTION 2.04 (B) PROPERTY AND EXCEPTION
--------------------------------------------------------------------------------
The Grove. The related mortgage loans constitute
approximately 12.7% of the Cut-Off Date Balance.
GGP JP Realty Portfolio. The related mortgage loans
constitute approximately 6.2% of the Cut-Off Date
Balance.
Dartmouth Mall. The related mortgage loans
constitute approximately 4.99% of the Cut-Off Date
Balance.
--------------------------------------------------------------------------------
(xxix)Waivers; Dartmouth Mall. Pursuant to that certain letter
Modifications dated as of May 30, 2003, addressed to the related
borrower, borrower is required to appoint an
independent director or manager as a special or
springing member of the related borrower and the
date by which certain required repairs are to be
performed has been extended to June 1, 2004.
--------------------------------------------------------------------------------
(xxxi) Property Release GGP JP Realty Portfolio. Salem - That portion of
the Salem Center mortgaged real property that is
improved and operated as a theater (the "Salem
Center Theater Parcel") is subject to the option of
the tenant thereof under its lease, to purchase
such parcel at the expiration of such lease
(occurring approximately May 31, 2009), or at the
expiration of any renewal term thereof at a
purchase price, pursuant to such lease, equal to
the greater of: (a) the then aggregate unpaid
balance of all indebtedness of the landlord secured
by liens and security interests encumbering the
Salem Center Theater Parcel, and (b) the appraised
value of the Salem Center Theater Parcel as of the
date of exercise of the purchase option. The
related loan documents provide that in the event of
the related tenant's exercise of its purchase
option, the proceeds of the resulting sale will be
applied as a prepayment of the related Mortgage
Loan.
GGP JP Realty Portfolio. The related loan documents
permit the borrower to transfer one or more of the
individual mortgaged malls and terminate the
cross-collateralization provisions with respect
thereto at any time after the commencement of the
open prepayment period, provided that certain
conditions are satisfied, including: (i) certain
debt service coverage ratio thresholds for the
remaining malls are satisfied, and (ii) the
borrower shall prepay a portion of the related
mortgage loan equal to not less than 125% of the
amount of the loan allocated to the mall being
released.
Dartmouth Mall. The related loan documents permit
the release of a portion of the related mortgaged
property comprising (not more than 12 acres) of the
vacant store and pad and a portion of the adjacent
parking lot, necessary to support a retail store on
such parcel, which portion may be sold to certain
specified companies and thereby released from the
lien of the related mortgage, subject to certain
conditions, which include: (a) conveyance of the
release parcel to one of the specified transferees,
(b) creation of reciprocal easements for ingress,
egress, parking and utilities across the release
parcel, retention of access easements, and
procurement of title insurance for such easements,
(c) recordation of restrictive covenants upon the
release parcel which limit the permitted uses
thereof as set forth in the related loan documents,
(d) separation of the release parcel from the
remaining mortgaged
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
REPRESENTATION FROM
SECTION 2.04 (B) PROPERTY AND EXCEPTION
--------------------------------------------------------------------------------
property as a separately subdivided tax parcel, and
the existence of the remaining mortgaged property
as lawfully subdivided parcel, and (e) no adverse
REMIC event to the trust shall have occurred
notwithstanding the release. The related loan
documents provide that lender is not entitled to
require repayment of the related mortgage loan from
the proceeds of any of the foregoing transfers.
--------------------------------------------------------------------------------
(xxxiii) Property Dartmouth Mall. Borrower is required under the loan
Financial Statements documents to deliver certified rent rolls for the
last month of each quarter.
--------------------------------------------------------------------------------
(xxxiv) Single Purpose Gunston Shopping Center. The borrower is a
Entity single-member limited liability company with
no second tier special purpose entity.
Oakwood Dulles. The borrower consists of two single
member limited liability companies, as tenants in
common. Each borrower has an independent manager,
but neither has a second tier special purpose
entity.
--------------------------------------------------------------------------------
(xlv) Fee Simple Canyon Plaza North. The mortgage loan is
secured wholly by the related borrower's
ground lease interest in the related Mortgaged
Property.
The Grove. The related loan is secured wholly
by the related borrower's ground lease
interest in the related mortgaged property.
--------------------------------------------------------------------------------
(xlvi) Leasehold Interest Canyon Plaza North.
Only
(B) The related ground lease provides that if a
sale occurs under the related mortgage, whether by
power of sale, foreclosure, assignment or deed in
lieu of foreclosure, and if the related lender is
the purchaser it may sell and assign the leasehold
estate without the further consent of the lessor,
provided that the assignee shall agree in writing
to be bound by all terms and conditions of the
lease. If the purchaser is a party other than the
related lender, or an assignee of the related
lender desires to further assign the related
leasehold estate, then said purchaser or such
assigning party shall be bound by all the terms and
conditions of the lease and the related lessor's
consent shall be required, not to be unreasonably
withheld, for any such further assignment of the
leasehold estate.
The Grove.
(B) Trustee will have a one-time right to assign the
related ground lease without the ground lessor's
consent. All subsequent assignments are subject to
the requirements of the ground lease regarding
transfers.
(C) Ground lease provides that the lease may not be
modified or amended without lender's consent, but is
silent on whether modifications or amendments made
in violation of such prohibition would be binding on
the lender.
(F) Ground lease is silent as to the effectiveness
of a notice of termination if
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
REPRESENTATION FROM
SECTION 2.04 (B) PROPERTY AND EXCEPTION
--------------------------------------------------------------------------------
not given to the lender.
(L) Options regarding new lease, as provided in the
ground lease, are silent on termination as a result
of the rejection of the ground lease in a bankruptcy
of the related mortgage loan borrower.
GGP JP Realty Portfolio (Salem).
(A) Three ground leases are evidenced by recordation
of an amendment to lease. One ground lease is a
sublease and is evidenced by recordation of the
sublease.
(B) Four of the leases do not expressly permit
assignments in lieu of foreclosure. Three of the
leases do not expressly provide that a purchaser at
foreclosure or assignee in lieu of foreclosure, may
transfer the leasehold interest without lessor's
consent. Two of the leases provide that the
purchaser at a foreclosure may dispose of its
leasehold interest, subject to the terms of the
leases, which terms include the requirement of prior
lessor consent to assignments of such leases.
(C) Four of the leases do not provide that the lease
may not be amended or modified without the lender's
consent. Three of the ground leases provide that
such lease may not be modified or amended without
lender's consent, but all are silent as to whether
modifications or amendments made in violation of
such prohibition would be binding on the lender.
(F) All of the ground leases are silent as to the
effectiveness of a notice of termination if not
given to the lender. Four of the ground leases do
not provide an option for a new lease upon
termination.
(I) The term of the sublease expires June 30, 2022.
The fee owner has agreed to lease to the subtenant
and subtenant agreed to lease the subject property
following termination of the sublease for a term
commencing as of 1962 and expiring in 2052.
(J) Condemnation: (1) Two of the ground leases
provide that in the event of a taking, the
condemnation award will be divided by the lessor and
lessee in the amount allowed them, respectively, on
account of such condemnation; (2) Two of the ground
leases provide that in the event of a taking, the
condemnation award will be divided by the lessor and
lessee in shares determined by the court having
jurisdiction; these leases also give either party
the right to require that proceeds be applied to
restoration; (3) Two of the ground leases provide
that in the event of a taking, the lessor will be
entitled to receive that portion of an award which
is attributable to the land; (4) One of the ground
leases provides that in the event of a condemnation,
the lessor will be entitled to receive that portion
of an award attributable to the land and the then
value of any improvements which existed at
commencement of the lease, or if such improvements
were removed, the value of the pre-existing
improvements as of the date of their removal.
Casualty. Two of the ground leases provide that all
proceeds will be applied to restoration, but such
leases also suggest that if such
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
REPRESENTATION FROM
SECTION 2.04 (B) PROPERTY AND EXCEPTION
--------------------------------------------------------------------------------
lease "will have terminated" such proceeds will be
paid to the lessor.
(L) The three ground leases which provide an option
for a new lease upon termination are silent on
termination as a result of the rejection of the
ground lease in a bankruptcy of the related mortgage
loan borrower.
--------------------------------------------------------------------------------
(xlvii) Fee Simple and The Grove. The related loan is not secured by the
Leasehold Interest fee interest.
GGP JP Realty Portfolio. Seven of the 15 parcels
comprising the Salem Mortgaged Property are
comprised of leasehold interests only; the mortgage
does not extend to the fee interest in those seven
parcels.
--------------------------------------------------------------------------------
(xlix) Defeasance Sangertown Square. The related loan documents
provide that defeasance may occur currently.
--------------------------------------------------------------------------------
(lvi) Common Ownership 308 Xxxxxxx Apartments and Parliament Place. Same
general partner and limited partners and guarantor.
AAA Self Storage, Silverado Self Storage. Key
principals are Xxxx Xxxxxxx, Xxx Xxxxxx and
Xxxxxxxxx Xxxxxxxxx.
East 53rd--Davenport, Grand Mesa Center, Newpointe
Plaza Phase II. All borrowers' key principals are E.
Xxxxxxx Xxxxxxx and Xxxxxxx X. Xxxxxxxxx.
GGP JP Realty Portfolio. Multi property loan with
single borrower.
Xxxxx Hill Apartments and Sunchase Olympiad. Same
key principals.
IBP Portfolio - IBP KFC, IBP KFC & Whataburger and
IBP Retail Strip. Same key principal and guarantor.
Xxxxxxx Plaza, Lakeside Shopping Center. Key
principals are Xxxxx Xxx and Xxxxxxx Xxxxxxxxx for
Xxxxxxx Plaza, and Xxxxx Xxx for Lakeside Shopping
Center.
Oakwood Dulles, Oakwood Grand Venetian. Key
principals are Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxx.
Springhill Suites, Townplace Suites (Boca Raton) and
Townplace Suites (Ft. Lauderdale). Each borrowing
entity is 100% owned by the X.X. Xxxx Real Estate
Trust.
--------------------------------------------------------------------------------
SCHEDULE IV
SCHEDULE OF ENVIRONMENTALLY INSURED MORTGAGE LOANS
-------------------------------------------------------------------------------
Mortgage Cut-off Date
Loan Number Property Name Address Balance
-------------------------------------------------------------------------------
10 Milestone Hotel Portfolio Various $34,995,000.00
-------------------------------------------------------------------------------
00 Xxxxxxx Xxxxxx Xxxxx 00000 Xxxxxxx Xxxxxx $ 3,390,975.58
-------------------------------------------------------------------------------
SCHEDULE V
REFERENCE RATE SCHEDULE
Interest Accrual Period Interest Accrual Period
by Numerical Order Beginning in: Reference Rate
------------------------- ----------------------- --------------
1 November 2003 5.38319%
2 December 2003 5.56638%
3 January 2004 5.38333%
4 February 2004 5.38357%
5 March 2004 5.56658%
6 April 2004 5.38352%
7 May 2004 5.56672%
8 June 2004 5.38365%
9 July 2004 5.56685%
10 August 2004 5.56693%
11 September 2004 5.38385%
12 October 2004 5.56706%
13 November 2004 5.38398%
14 December 2004 5.38403%
15 January 2005 5.38411%
16 February 2005 5.38473%
17 March 2005 5.56738%
18 April 2005 5.38430%
19 May 2005 5.56753%
20 June 2005 5.38444%
21 July 2005 5.56769%
22 August 2005 5.56777%
23 September 2005 5.38467%
24 October 2005 5.56792%
25 November 2005 5.38482%
26 December 2005 5.38489%
27 January 2006 5.38497%
28 February 2006 5.38566%
29 March 2006 5.56829%
30 April 2006 5.38518%
31 May 2006 5.56845%
32 June 2006 5.38532%
33 July 2006 5.56860%
34 August 2006 5.56868%
35 September 2006 5.38555%
36 October 2006 5.56883%
37 November 2006 5.38570%
38 December 2006 5.38576%
39 January 2007 5.38584%
40 February 2007 5.38658%
41 March 2007 5.56918%
42 April 2007 5.38603%
43 May 2007 5.56933%
44 June 2007 5.38617%
Interest Accrual Period Interest Accrual Period
by Numerical Order Beginning in: Reference Rate
------------------------- ----------------------- --------------
45 July 2007 5.56947%
46 August 2007 5.56955%
47 September 2007 5.38639%
48 October 2007 5.56969%
49 November 2007 5.38652%
50 December 2007 5.56983%
51 January 2008 5.38666%
52 February 2008 5.38697%
53 March 2008 5.57003%
54 April 2008 5.38685%
55 May 2008 5.57017%
56 June 2008 5.38698%
57 July 2008 5.69198%
58 August 2008 5.76138%
59 September 2008 5.56705%
60 October 2008 5.73929%
61 November 2008 5.54852%
62 December 2008 5.54847%
63 January 2009 5.54845%
64 February 2009 5.56870%
65 March 2009 5.75266%
66 April 2009 5.56360%
67 May 2009 5.75260%
68 June 2009 5.56354%
69 July 2009 5.75254%
70 August 2009 5.75251%
71 September 2009 5.56345%
72 October 2009 5.71639%
73 November 2009 5.52842%
74 December 2009 5.52833%
75 January 2010 5.52824%
76 February 2010 5.52905%
77 March 2010 5.71589%
78 April 2010 5.52793%
79 May 2010 5.71822%
80 June 2010 5.53336%
81 July 2010 5.72127%
82 August 2010 5.74478%
83 September 2010 5.55367%
84 October 2010 5.71197%
EXHIBIT A-1
FORM OF CLASS [A-1] [A-2] [A-3] [A-4] CERTIFICATES
LB-UBS COMMERCIAL MORTGAGE TRUST 2003-C8
CLASS [A-1] [A-2] [A-3] [A-4] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C8
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] [___% 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]
November 11, 2003 [A-3] [A-4] Certificates as of the Closing Date:
$_____________
Cut-off Date: November 11, 0000 Xxxxxxxxx unpaid principal balance of the Mortgage
Pool as of the Cut-off Date, after deducting payments
Closing Date: November 25, 2003 of principal due on or before such date (the "Initial
Pool Balance"): $1,399,717,369
First Distribution Date: December 17, 2003
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
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, WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V., 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 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), Wachovia Bank, National
Association, as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc., as special
servicer (the "Special Servicer", which term includes any successor entity under
the Agreement), LaSalle Bank National Association, as trustee (the "Trustee",
which term includes any successor entity under the Agreement), and ABN AMRO Bank
N.V., as fiscal agent (the "Fiscal Agent", 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
A-1-2
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. 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
A-1-3
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 Fiscal Agent, 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 Fiscal Agent, 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 Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent 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
A-1-4
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.
LASALLE BANK NATIONAL ASSOCIATION,
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:
---------
LASALLE BANK NATIONAL ASSOCIATION,
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 2003-C8
CLASS [X-CL] [X-CP] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C8
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] [X-CP]
November 11, 2003 Certificates as of the Closing Date:
$_____________
Cut-off Date: November 11, 0000 Xxxxxxxxx unpaid principal balance of the Mortgage
Pool as of the Cut-off Date, after deducting payments
Closing Date: November 25, 2003 of principal due on or before such date (the "Initial
Pool Balance"): $1,399,717,369
First Distribution Date: December 17, 2003
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
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, WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V., 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.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF
THIS CERTIFICATE. THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT 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
X-0-0
XXXXXXXXXXX XX XXX XXXXXX XXXXXX 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),
Wachovia Bank, National Association, as master servicer (the "Master Servicer",
which term includes any successor entity under the Agreement), Lennar Partners,
Inc., as special servicer (the "Special Servicer", which term includes any
successor entity under the Agreement), LaSalle Bank National Association, as
trustee (the "Trustee", which term includes any successor entity under the
Agreement) and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent", 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. 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.
A-2-3
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 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, the
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 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
A-2-4
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 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
A-2-5
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 Fiscal Agent, 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 Person responsible for servicing the Sangertown Square
Trust Mortgage Loan or any Sangertown Square 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 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-2-6
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 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 Fiscal Agent, 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 Fiscal Agent, 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 Initial Pool Balance
specified on the face hereof.
A-2-7
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent 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-2-8
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LASALLE BANK NATIONAL ASSOCIATION,
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:
-------
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
---------------------------------
Authorized Officer
A-2-9
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] CERTIFICATES
LB-UBS COMMERCIAL MORTGAGE TRUST 2003-C8
CLASS [B] [C] [D] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C8
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 [B] [C] [D]
November 11, 2003 Certificates as of the Closing Date:
$____________
Cut-off Date: November 11, 0000 Xxxxxxxxx unpaid principal balance of the Mortgage
Pool as of the Cut-off Date, after deducting payments
Closing Date: November 25, 2003 of principal due on or before such date (the "Initial
Pool Balance"): $1,399,717,369
First Distribution Date: December 17, 2003
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
Certificate No. [B] [C] [D]-___ 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, WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V., OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [Cede & Co.] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), between
Structured Asset Securities Corporation II, as depositor (the "Depositor", which
term includes any successor entity under the Agreement), Wachovia Bank, National
Association, as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc., as special
servicer (the "Special Servicer", which term includes any successor entity under
the Agreement), LaSalle
A-3-2
Bank National Association, as trustee (the "Trustee", which term includes any
successor entity under the Agreement), and ABN AMRO Bank N.V., as fiscal agent
(the "Fiscal Agent", 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. 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.
A-3-3
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 Fiscal Agent, 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 Fiscal Agent, 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 Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of
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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.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B] [C] [D] Certificates referred to in the
within-mentioned Agreement.
Dated:
-------------
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
----------------------------------
Authorized Officer
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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 [E] [F] [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T] CERTIFICATES
LB-UBS COMMERCIAL MORTGAGE TRUST 2003-C8
CLASS [E] [F] [G] [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2003-C8
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 [E] [F] [G]
November 11, 2003 [H] [J] [K] [L] [M] [N] [P] [Q] [S] [T] Certificates as
of the Closing Date:
$________________
Cut-off Date: November 11, 0000 Xxxxxxxxx unpaid principal balance of the Mortgage
Pool as of the Cut-off Date, after deducting payments
Closing Date: November 25, 2003 of principal due on or before such date (the "Initial
Pool Balance"): $1,399,717,369
First Distribution Date: December 17, 2003
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
Certificate No. [E] [F] [G] [H] [J] [K] [L] [M] [N] [P] CUSIP No.: _____________
[Q] [S] [T]-____
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[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, WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V., OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
[FOR 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
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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), Wachovia Bank, National
Association, as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc., as special
servicer (the "Special Servicer", which term includes any successor entity under
the Agreement), LaSalle Bank National Association, as trustee (the "Trustee",
which term includes any successor entity under the Agreement) and ABN AMRO Bank
N.V., as fiscal agent (the "Fiscal Agent", 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. 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
A-4-3
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.
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, the
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 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
A-4-4
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 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 2003-C8,
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
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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.
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 Fiscal Agent, 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
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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 Person responsible for
servicing the Sangertown Square Trust Mortgage Loan or any Sangertown Square 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 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 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
A-4-7
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 Fiscal Agent, 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 Fiscal Agent, 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 Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [E] [F] [G] [H] [J] [K] [L] [M] [N] [P] [Q]
[S] [T] Certificates referred to in the within-mentioned Agreement.
Dated:
-------------
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
----------------------------------
Authorized Officer
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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] [R-LR] CERTIFICATES
LB-UBS COMMERCIAL MORTGAGE TRUST 2003-C8
CLASS [R-I] [R-II] [R-III] [R-LR] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C8
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
November 11, 2003 related Class: _____%
Cut-off Date: November 11, 0000 Xxxxxxxxx unpaid principal balance of the Mortgage
Pool as of the Cut-off Date, after deducting payments
Closing Date: November 25, 2003 of principal due on or before such date (the "Initial
Pool Balance"): $1,399,717,369
First Distribution Date: December 17, 2003
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National Association
Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
Certificate No. [R-I] [R-II] [R-III] [R-LR] -___
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, WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V., OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that _______________________________ is the registered
owner of the Percentage Interest evidenced by this Certificate (as specified
above) in that certain beneficial ownership interest in the Trust evidenced by
all the Certificates of the same Class as this Certificate. The Trust was
created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), between Structured Asset
Securities Corporation II, as depositor (the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association,
as master servicer (the "Master Servicer", which term includes any successor
entity under the Agreement), Lennar Partners, Inc., as special servicer (the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association, as trustee (the "Trustee", which
term includes any successor entity under the Agreement) and ABN AMRO Bank N.V.,
as fiscal agent (the "Fiscal Agent", which term includes any successor entity
under the
A-5-2
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. 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-5-3
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, the
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 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 Fiscal Agent, 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, either: (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
A-5-4
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 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
A-5-5
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 "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
A-5-6
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 Fiscal Agent, 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 Fiscal Agent, 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 Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent 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-5-7
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] [R-III] [R-LR] Certificates
referred to in the within-mentioned Agreement.
Dated:
------------
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
---------------------------------
Authorized Officer
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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 V CERTIFICATES
LB-UBS COMMERCIAL MORTGAGE TRUST 2003-C8
CLASS V COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C8
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
November 11, 2003 in Class V: ___%
Cut-off Date: November 11, 0000 Xxxxxxxxx unpaid principal balance of the Mortgage
Pool as of the Cut-off Date, after deducting
Closing Date: November 25, 2003 payments of principal due on or before such date
(the "Initial Pool Balance"): $1,399,717,369
First Distribution Date: December 17, 2003
Master Servicer: Wachovia Bank, National
Association Trustee: LaSalle Bank National Association
Special Servicer: Lennar Partners, Inc. Fiscal Agent: ABN AMRO Bank N.V.
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, WACHOVIA BANK, NATIONAL ASSOCIATION, LENNAR
PARTNERS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK N.V., 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), Wachovia Bank, National Association, as master servicer (the "Master
Servicer", which term includes any successor entity under the Agreement), Lennar
Partners, Inc., as special servicer (the "Special Servicer", which term includes
any successor entity under the Agreement), LaSalle Bank National Association, as
trustee (the "Trustee", which term includes any successor entity under the
Agreement) and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent", 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
A-6-2
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. 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 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, the
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
A-6-3
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 Fiscal Agent, 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 either: (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 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
A-6-4
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 Fiscal Agent, 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 Fiscal Agent, 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 Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent 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-6-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the
within-mentioned Agreement.
Dated:
-----------
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
Authorized Officer
A-6-6
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.
A-6-7
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 2003-C8
Commercial Mortgage Pass Through Certificates, Series 2003-C8 (the
"Certificates")
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
dated as of November 11, 2003, relating to the above-referenced Certificates
(the "Agreement"), LaSalle Bank National Association, 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) (without regard to the second
parenthetical in such clause (a)(viii) or, in the case of the Sangertown Square
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.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
Respectfully,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
C-1
Schedule A
Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx-XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: LB-UBS Commercial Mortgage Trust 2003-C8
Lennar Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2003-C8
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2003-C8
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2003-C8
Xxxxxx Brothers Holdings Inc., doing business as Xxxxxx Capital,
a division of Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2003-C8
LUBS Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2003-C8
UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2003-C8
UBS Real Estate Investments Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: LB-UBS Commercial Mortgage Trust 2003-C8
Each of the XX Xxxx Non-Trust Mortgage Loan Noteholders
C-3
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
LB-UBS Commercial Mortgage Trust 2003-C8
Re: LB-UBS Commercial Mortgage Trust 2003-C8,
Commercial Mortgage Pass-Through Certificates, Series 2003-C8
In connection with the administration of the Mortgage Files held by or
on behalf of you as Trustee under that certain Pooling and Servicing Agreement
dated as of November 11, 2003 (the "Pooling and Servicing Agreement"), by and
between Structured Asset Securities Corporation II, as depositor, the
undersigned, as master servicer (the "Master Servicer"), Lennar Partners, Inc.,
as special servicer (the "Special Servicer"), you, as trustee (the "Trustee")
and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"), the undersigned
hereby requests a release of the Mortgage File (or the portion thereof specified
below) held by or on behalf of you, as Trustee, with respect to the following
described Mortgage Loan for the reason indicated below.
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
Account pursuant to the Pooling and Servicing Agreement,
have been or will be so credited.
_____ 2. Other. (Describe) __________________________________________
___________________________________________________________
___________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently.
D-1-1
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
------------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
----------
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
LB-UBS Commercial Mortgage Trust 2003-C8
Re: LB-UBS Commercial Mortgage Trust 2003-C8,
Commercial Mortgage Pass-Through Certificates, Series 2003-C8
In connection with the administration of the Mortgage Files held by or on
behalf of you as Trustee under that certain Pooling and Servicing Agreement
dated as of November 11, 2003 (the "Pooling and Servicing Agreement"), by and
between Structured Asset Securities Corporation II, as depositor, Wachovia Bank,
National Association, as master servicer (the "Master Servicer"), the
undersigned, as special servicer (the "Special Servicer"), you, as trustee (the
"Trustee") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"), the
undersigned hereby requests a release of the Mortgage File (or the portion
thereof specified below) held by or on behalf of you as Trustee with respect to
the following described Mortgage Loan for the reason indicated below.
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
Account pursuant to the Pooling and Servicing Agreement,
have been or will be so credited.
_____ 2. Other. (Describe) __________________________________________
____________________________________________________________
____________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof (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.
D-2-1
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
LENNAR PARTNERS, 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 X00 X00 X00
---------------------------------------------------------------------------------------------------------------------
Scheduled Preceding
Short Name Mortgage Paid Fiscal Yr.
Prospectus (When Property Loan Thru Current Maturity DSCR Most Recent
ID Appropriate) Type State Balance Date Interest Rate Date NCR DSCR NCF
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
Scheduled Payments
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
Unscheduled Payment
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
Total: $
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
--------------------------------------------------
S4 Servicer Estimated Information
--------------------------------------------------
Expected Expected
Prospectus Yield Payment Distribution
ID 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 NON-REGISTERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
LB-UBS Commercial Mortgage Trust 2003-C8
Re: LB-UBS Commercial Mortgage Trust 2003-C8, Commercial Mortgage
Pass-Through Certificates, Series 2003-C8, Class _____, [having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of November 25, 2003 (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 November 11, 2003, between Structured
Asset Securities Corporation II, as Depositor, Wachovia Bank, National
Association, as Master Servicer, Lennar Partners, Inc., as Special Servicer,
LaSalle Bank National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. 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 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-1-1
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
LB-UBS Commercial Mortgage Trust 2003-C8
Re: LB-UBS Commercial Mortgage Trust 2003-C8, Commercial Mortgage
Pass-Through Certificates, Series 2003-C8, Class ___, [having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of November 25, 2003 (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 November 11, 2003, between
Structured Asset Securities Corporation II, as Depositor, Wachovia Bank,
National Association, as Master Servicer, Lennar Partners, Inc., as Special
Servicer, LaSalle Bank National Association, as Trustee, and ABN AMRO Bank N.V.,
as Fiscal Agent. All capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, and for the benefit of the Trustee and the Depositor,
that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
is being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer and to whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (b) pursuant to another exemption
from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, and (e) all related matters, that it has requested.
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 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
----------
(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
loan association, and not more than 18 months preceding such date of
sale in the case of a foreign savings and loan association or
equivalent institution.
____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
____ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a state, U.S. territory or the District
of Columbia.
____ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
____ Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940.
____ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1)_________________________________________________________
______________________________________________________________________
_____________________________________________________________________.
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment to
or subscription by such Person, if such Person is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities
were valued at market. Further, in determining such aggregate amount, the
Transferee may have included securities owned by subsidiaries of such
Person, but only if such subsidiaries are consolidated with such Person in
its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are
managed under such Person's direction. However, such securities were not
included if such Person is a majority-owned, consolidated subsidiary of
another enterprise and such Person is not itself a reporting company under
the Securities Exchange Act of 1934, as amended.
F-2A-4
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, (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
F-2A-6
by the Transferee, or owned by the Transferee's Family of Investment
Companies, the securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one
or more sales to the Transferee will be in reliance on Rule 144A.
___ __ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until
such notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant
to which the Transferred Certificates were issued.
-----------------------------------
Print Name of Transferee or Adviser
By:
-------------------------------
Name:
Title:
Date:
IF AN ADVISER:
-----------------------------------
Print Name of Transferee
Date:
-----------------------------
F-2A-7
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
LB-UBS Commercial Mortgage Trust 2003-C8
Re: LB-UBS Commercial Mortgage Trust 2003-C8, Commercial Mortgage
Pass-Through Certificates, Series 2003-C8, Class _____,[having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of November 25, 2003 (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 November 11, 2003, between Structured
Asset Securities Corporation II, as Depositor, Wachovia Bank, National
Association, as Master Servicer, Lennar Partners, Inc., as Special Servicer,
LaSalle Bank National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. 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 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
F-2B-1
Securities Act, together with copies of the written certification(s) from
the transferor and/or transferee setting forth the facts surrounding the
transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate or interest therein, except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that each
Transferred Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO
(A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any offer
to buy or accept a pledge, disposition or other transfer of any Transferred
Certificate, any interest in any Transferred Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Transferred Certificate, any interest in any
Transferred Certificate or any other similar security with any person in
any manner, (d) made any general solicitation with respect to any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in any Transferred Certificate or any other
similar security, which (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of the
Transferred Certificates under the Securities Act, would render the
disposition of the Transferred Certificates a violation of Section 5 of the
Securities Act or any state securities law or would require registration or
qualification of the Transferred Certificates pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any
person to act, in any manner set forth in the foregoing sentence with
respect to any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the Pooling and Servicing
F-2B-2
Agreement and the Trust Fund created pursuant thereto, (d) the nature,
performance and servicing of the Trust Mortgage Loans, and (e) all related
matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in any
of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act
or an entity in which all of the equity owners come within such paragraphs.
The Transferee has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an
investment in the Transferred Certificates; the Transferee has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Transferee is able to bear the
economic risks of such investment and can afford a complete loss of such
investment.
7. If the Transferee proposes that the Transferred Certificates
be registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgement below.
Very truly yours,
-----------------------------------
(Transferee)
By:
-------------------------------
Name:
Title:
Nominee Acknowledgement
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
-----------------------------------
(Nominee)
By:
-------------------------------
Name:
Title:
F-2B-3
EXHIBIT F-2C
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: LB-UBS Commercial Mortgage Trust 2003-C8, Commercial Mortgage
Pass-Through Certificates, Series 2003-C8, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of November 25, 2003 (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 November 11, 2003, between Structured Asset Securities
Corporation II, as Depositor, Wachovia Bank, National Association, as Master
Servicer, Lennar Partners, Inc., as Special Servicer, LaSalle Bank National
Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. 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 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.
F-2C-1
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates or any interest therein except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that the
Transferred Certificates will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO
(A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. The Transferee 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
Corp. II, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
Xxxxxxx--LB-UBS Commercial Mortgage Trust 2003-C8, facsimile number: (646)
758-4203.
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 Trust 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-2
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 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.
----------
(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-3
savings and loan association, and not more than 18 months preceding
such date of sale in the case of a foreign savings and loan
association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a state, U.S. territory or the District
of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940, as amended.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment to
or subscription by such Person, if such Person is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities
were valued at market. Further, in determining such aggregate amount, the
Transferee may have included securities owned by subsidiaries of such
Person, but only if such subsidiaries are consolidated with such Person in
its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are
managed under such Person's direction. However, such securities were not
included if such Person is a majority-owned, consolidated subsidiary of
another enterprise and such Person is not itself a reporting company under
the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the
Transferred Certificates are relying and will continue to rely on
F-2C-4
the statements made herein because one or more Transfers to the Transferee
may be in reliance on Rule 144A.
___ __ Will the Transferee be acquiring interests in the Transferred
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 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-5
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).
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.
F-2C-6
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are
relying and will continue to rely on the statements made herein because one
or more Transfers to the Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be acquiring interests in the Transferred
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 acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a
third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of
such third party has been established by the Transferee through one or more
of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until
such notice, the Transferee's acquisition of any interest in the
Transferred Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such acquisition.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which
the Transferred Certificates were issued.
-----------------------------------
(Transferee or Adviser)
By:
------------------------------
Name:
Title:
Date:
IF AN ADVISER:
Print Name of Transferee
-----------------------------------
Date:
F-2C-7
EXHIBIT F-2D
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: LB-UBS Commercial Mortgage Trust 2003-C8, Commercial Mortgage
Pass-Through Certificates, Series 2003-C8, Class _____, having an
initial aggregate [Certificate Principal Balance] [Certificate
Notional Amount] as of November 25, 2003 (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 November 11, 2003, between Structured Asset Securities
Corporation II, as Depositor, Wachovia Bank, National Association, as Master
Servicer, Lennar Partners, Inc., as Special Servicer, LaSalle Bank National
Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. 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 United
States, other than one held for the benefit or account of a non-United States
Securities Person by a dealer or other professional fiduciary organized,
incorporated or (if any individual) resident in the United States, (viii) any
partnership or corporation if (a) organized or incorporated under the laws of
any foreign jurisdiction and (b) formed by a United States Securities Person
principally for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated, and owned, by
"accredited investors" (as defined in Rule 501(a)) under the United States
Securities Act of 1933, as amended (the "Securities Act"), who are not natural
persons, estates or trusts;
F-2D-1
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__
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
LB-UBS Commercial Mortgage Trust 2003-C8
Re: LB-UBS Commercial Mortgage Trust 2003-C8, Commercial Mortgage
Pass-Through Certificates, Series 2003-C8 (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 November 25, 2003 (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 November 11,
2003, between Structured Asset Securities Corporation II, as depositor, Wachovia
Bank, National Association, as master servicer, Lennar Partners, Inc., as
special servicer, LaSalle Bank National Association, as trustee, and ABN AMRO
Bank N.V., as fiscal agent. 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 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
G-1-1
Depositor, any Mortgage Loan Seller, the Master Servicer, the Special
Servicer, any Sub-Servicer, any Person responsible for servicing the
Sangertown Square Trust Mortgage Loan or any Sangertown Square 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 NON-REGISTERED CERTIFICATES)
[Date]
[TRANSFEROR]
Re: LB-UBS Commercial Mortgage Trust 2003-C8, Commercial Mortgage
Pass-Through Certificates, Series 2003-C8 (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 November 25, 2003 (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 November 11, 2003 (the "Pooling and Servicing
Agreement"), among Structured Asset Securities Corporation II, as depositor,
Wachovia Bank, National Association, as master servicer, Lennar Partners, Inc.,
as special servicer, LaSalle Bank National Association, as trustee, and ABN AMRO
Bank N.V., as fiscal agent. 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 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 Sangertown
Square
G-2-1
Trust Mortgage Loan or any Sangertown Square 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 2003-C8, Commercial Mortgage
Pass-Through Certificates, Series 2003-C8 (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of November 11,
2003, between Structured Asset Securities Corporation II, as
Depositor, Wachovia Bank, National Association, as Master
Servicer, Lennar Partners, Inc., as Special Servicer, LaSalle
Bank National Association, as Trustee, and ABN AMRO Bank N.V., as
Fiscal Agent
STATE OF )
) ss.: ____________________
COUNTY OF )
I, _________________________, under penalties of perjury, declare
that, to the best of my knowledge and belief, the following representations are
true, correct and complete, and being first sworn, depose and say that:
1. I am a __________________________ of ______________________________
(the "Purchaser"), on behalf of which I have the authority to make this
affidavit.
2. The Purchaser is acquiring [Class R-I] [Class R-II] [Class R-III]
[Class R-LR] 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"] [the "Loan REMIC"],
[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").
3. 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] [Class R-LR] 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
4. 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.
5. The Purchaser will not cause the income from the [Class R-I] [Class
R-II] [Class R-III] [Class R-LR] 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.
6. 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] [Class R-LR] Certificates to a
Disqualified Organization.
7. No purpose of the acquisition of the [Class R-I] [Class R-II]
[Class R-III] [Class R-LR]Certificates is to impede the assessment or collection
of tax
8. [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] [Class R-LR] 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] [Class R-LR] 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] [Class R-LR] 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]
[Class R-LR] Certificate;
(c) intends to pay the taxes associated with holding a [Class
R-I] [Class R-II] [Class R-III] [Class R-LR] 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... [_]
9. 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] [Class R-LR] Certificates as they become due.
10. The Purchaser understands that it may incur tax liabilities
with respect to the [Class R-I] [Class R-II] [Class R-III] [Class R-LR]
Certificates in excess of any cash flows generated by such Certificates.
11. The Purchaser will not transfer the [Class R-I] [Class R-II]
[Class R-III] [Class R-LR] 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 3, 4, 5, 7
or 9 hereof are not satisfied, or to any person or entity with respect to
which the Purchaser has not (at the time of such transfer) satisfied the
requirements under the Code to conduct a reasonable investigation of the
financial condition of such person or entity (or its current beneficial
owners if such person or entity is classified as a partnership under the
Code).
12. 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]
[Class R-LR] Certificates to a Disqualified Organization, an agent thereof
or a person that does not satisfy the requirements of paragraphs 7 and 9.
H-1-3
13. The Purchaser consents to the designation of the Trustee as
the agent of the Tax Matters Person of [REMIC I] [REMIC II] [REMIC III]
[the Loan REMIC] 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 ___________________________, known or
proved to me to be the same person who executed the foregoing instrument and to
be a_______________________ of the Purchaser, and acknowledged to me that he/she
executed the same as his/her free act and deed and as 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]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
LB-UBS Commercial Mortgage Trust 2003-C8
Re: LB-UBS Commercial Mortgage Trust 2003-C8, Commercial Mortgage
Pass-Through Certificates, Series 2003-C8 (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] [Class R-LR] 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 November 11, 2003
(the "Pooling and Servicing Agreement"), between Structured Asset Securities
Corporation II, as depositor, Wachovia Bank, National Association, as master
servicer, Lennar Partners, Inc., as special servicer, LaSalle Bank National
Association, as trustee, and ABN AMRO Bank N.V., as fiscal agent. 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.
H-2-1
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 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 November 11, 2003 and relating to LB-UBS
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2003-C8 (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.
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,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------
Name:
Title:
I-1-1
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]
[FISCAL AGENT]
Re: LB-UBS Commercial Mortgage Trust 2003-C8,
Commercial Mortgage Pass-Through Certificates, Series 2003-C8
Ladies and Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement, dated
as of November 11, 2003, relating to LB-UBS Commercial Mortgage Trust 2003-C8,
Commercial Mortgage Pass-Through Certificates, Series 2003-C8 (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 LaSalle Bank National Association, as trustee for the holders of the LB-UBS
Commercial Mortgage Trust 2003-C8, Commercial Mortgage Pass-Through
Certificates, Series 2003-C8 (referred to as the "Secured Party" for purposes of
this financing statement only), under the Pooling and Servicing Agreement, dated
as of November 11, 2003 (the "Pooling and Servicing Agreement"), between the
Debtor, as depositor, the Secured Party, as trustee (the "Trustee"), Wachovia
Bank, National Association, as master servicer (the "Master Servicer"), Lennar
Partners, Inc., as special servicer (the "Special Servicer"), and ABN AMRO Bank
N.V. as fiscal agent, relating to the issuance of the LB-UBS Commercial Mortgage
Trust 2003-C8, Commercial Mortgage Pass-Through Certificates, Series 2003-C8
(the "Series 2003-C8 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 Account 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 Account 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 Account 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 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;
(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) 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;
J-2
(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 2003-C8 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
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-3
EXHIBIT A TO SCHEDULE 1
(See Schedule I- Trust Mortgage Loan Schedule)
J-4
EXHIBIT K
SUB-SERVICERS IN RESPECT OF WHICH SUB-SERVICING AGREEMENTS ARE IN
EFFECT OR BEING NEGOTIATED AS OF THE CLOSING DATE
K-1
EXHIBIT L-1
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION FOR WEBSITE ACCESS
FROM CERTIFICATE [HOLDER] [OWNER]
[Date]
[LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
LB-UBS Commercial Mortgage Trust 2003-C8]
[Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx-XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: LB-UBS Commercial Mortgage Trust 2003-C8]
Re: LB-UBS Commercial Mortgage Trust 2003-C8,
Commercial Mortgage Pass-Through Certificates, Series 2003-C8
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of November 11, 2003 (the "Pooling and Servicing
Agreement"), between Structured Asset Securities Corporation II, as depositor
(the "Depositor"), Wachovia Bank, National Association, as master servicer,
Lennar Partners, Inc., as special servicer, LaSalle Bank National Association,
as trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent, with
respect to LB-UBS Commercial Mortgage Trust 2003-C8, Commercial Mortgage
Pass-Through Certificates, Series 2003-C8 (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 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 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.
L-1-1
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.
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]
[LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
LB-UBS Commercial Mortgage Trust 2003-C8]
[Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx-XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: LB-UBS Commercial Mortgage Trust 2003-C8]
Re: LB-UBS Commercial Mortgage Trust 2003-C8,
Commercial Mortgage Pass-Through Certificates, Series 2003-C8
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of November 11, 2003 (the "Pooling and Servicing
Agreement"), between Structured Asset Securities Corporation II, as depositor
(the "Depositor"), Wachovia Bank, National Association, as master servicer,
Lennar Partners, Inc., as special servicer, LaSalle Bank National Association,
as trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent, with
respect to LB-UBS Commercial Mortgage Trust 2003-C8, Commercial Mortgage
Pass-Through Certificates, Series 2003-C8 (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 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 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 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.
L-2-1
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.
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 November 11, 2003 (the "Pooling and Servicing Agreement"), between
Structured Asset Securities Corporation II, as Depositor, the Master
Servicer, Lennar Partners, Inc., as special servicer, LaSalle Bank National
Association, as trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal
agent.
Date: _________, 20___
Re: LB-UBS Commercial Mortgage Trust 2003-C8,
Commercial Mortgage Pass-Through Certificates, Series 2003-C8
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 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;
M-2
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 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").
M-3
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") .
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
M-4
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 [Wachovia Bank, National Association
000 Xxxxxxx Xxxxxx 8739 Research Drive-URP4
New York, New York 10019 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxx] Attention: LB-UBS Commercial Mortgage Trust 2003-
C8]
[UBS Securities LLC [Lennar Partners, Inc.
1285 Avenue of the Americas 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000 Xxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx Attention: LB-UBS Commercial Mortgage Trust 2003-
Xxxxxx Xxxxxxxxx] C8]
[Controlling Class Representative (if known)] [LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group-
LB-UBS Commercial Mortgage Trust 2003-C8]
Re: LB-UBS Commercial Mortgage Trust 2003-C8,
Commercial Mortgage Pass-Through Certificates, Series 2003-C8
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 2.03 of the Pooling
and Servicing Agreement, dated as of November 11, 2003 (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.
____ 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,
[LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------
Name:
Title:]
[WACHOVIA BANK, NATIONAL ASSOCIATION,
as Master Servicer
By:
--------------------------------------
Name:
Title:]
N-2
[LENNAR PARTNERS, 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
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx;
and
(ii) Internal Counsel to the Depositor/Xxxxxx Mortgage Loan Seller:
Xxxxxx Brothers Holdings Inc., doing business as Xxxxxx Capital,
a Division of Xxxxxx Brothers Holdings, Inc., or its successor in
interest
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
N-3
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-4
EXHIBIT O
FORM OF CONTROLLING CLASS REPRESENTATIVE CONFIDENTIALITY AGREEMENT
[Date]
[LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--LB-UBS Commercial
Mortgage Trust 2003-C8]
[Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx-XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: LB-UBS Commercial Mortgage Trust 2003-C8]
[Lennar Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attention: LB-UBS Commercial Mortgage Trust 2003-C8]
Re: LB-UBS Commercial Mortgage Trust 2003-C8,
Commercial Mortgage Pass-Through Certificates, Series 2003-C8
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of November 11, 2003 (the "Pooling and Servicing
Agreement"), between Structured Asset Securities Corporation II, as depositor
(the "Depositor"), Wachovia Bank, National Association, as master servicer,
Lennar Partners, Inc., as special servicer, LaSalle Bank National Association,
as trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent, with
respect to LB-UBS Commercial Mortgage Trust 2003-C8, Commercial Mortgage
Pass-Through Certificates, Series 2003-C8 (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
Re: LB-UBS Commercial Mortgage Trust 2003-C8 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2003-C8 (the
"Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement, dated
as of November 11, 2003 (the "Pooling and Servicing Agreement"), between
Structured Asset Securities Corporation II as depositor (the "Depositor"),
LaSalle Bank National Association as trustee (the "Trustee"), Wachovia Bank,
National Association as master servicer (the "Master Servicer"), Lennar
Partners, Inc. as special servicer (the "Special Servicer") and ABN AMRO Bank
N.V. as fiscal agent, 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 2003-C8 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2003-C8 (the
"Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement, dated
as of November 11, 2003 (the "Pooling and Servicing Agreement"), between
Structured Asset Securities Corporation II as depositor (the "Depositor"),
LaSalle Bank National Association as trustee (the "Trustee"), Wachovia Bank,
National Association as master servicer (the "Master Servicer"), Lennar
Partners, Inc. as special servicer (the "Special Servicer") and ABN AMRO Bank
N.V. as fiscal agent, relating to the Certificates, the undersigned, a
____________________ of the Master Servicer and on behalf of the Master
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 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;
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
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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, Xxxxx A-4 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
the Special Servicer under the Pooling and Servicing Agreement, beyond the
corresponding certification actually provided by the Special Servicer pursuant
to Section 8.15(i) of the Pooling and Servicing Agreement. 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 (i) 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, or (ii) upon information required to be provided
by the Sangertown Square Master Servicer or upon the performance by the
Sangertown Square Master Servicer of its obligations pursuant to the Sangertown
Square Servicing Agreement, in each case beyond the backup certification
actually provided by the Sangertown Square Master Servicer to the Master
Servicer with respect to the information that is the subject of such
certification; provided that this clause (ii) shall not apply in the event the
Master Servicer is, or is an Affiliate of, the Sangertown Square Master
Servicer.
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:
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EXHIBIT R
FORM OF SPECIAL SERVICER BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: LB-UBS Commercial Mortgage Trust 2003-C8 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2003-C8 (the
"Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement, dated
as of November 11, 2003 (the "Pooling and Servicing Agreement"), between
Structured Asset Securities Corporation II as depositor (the "Depositor"),
LaSalle Bank National Association as trustee (the "Trustee"), Wachovia Bank,
National Association as master servicer (the "Master Servicer"), Lennar
Partners, Inc. as special servicer (the "Special Servicer") and ABN AMRO Bank
N.V. as fiscal agent, 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 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 or persons acting under my supervision 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
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Servicing Agreement with respect to such year all significant deficiencies
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:
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